ESTATE OF STEINBERG v. HARMON (1999)

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered April 3, 1998, which, in an action for legal malpractice and violation of Judiciary Law § 487, granted defendant's motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

 Plaintiff cannot state a cause of action for legal malpractice based solely on defendant's disqualification for an alleged conflict of interest in a separate litigation (see, Lavanant v. General Acc. Ins. Co., 212 A.D.2d 450, 622 N.Y.S.2d 726;  Mills v. Pappas, 174 A.D.2d 780, 782, 570 N.Y.S.2d 726, lv. denied 78 N.Y.2d 1121, 578 N.Y.S.2d 874, 586 N.E.2d 57, cert. denied 504 U.S. 971, 112 S.Ct. 2957, 119 L.Ed.2d 579).   Plaintiff does not show any damages attributable to defendant's alleged ethical breach, other than the attorney fees it incurred in litigating defendant's disqualification, the first application for which was denied.   In any event, as the motion court noted, the request for fees, if recoverable, should have been raised in the proceeding in which the disqualification occurred.   Nor does plaintiff allege facts showing “a chronic, extreme pattern of delinquency” such as would support a cause of action under Judiciary Law § 487 (Gonzalez v. Gordon, 233 A.D.2d 191, 649 N.Y.S.2d 701, lv. denied 90 N.Y.2d 802, 660 N.Y.S.2d 713, 683 N.E.2d 336).

MEMORANDUM DECISION.