Zubair Patel, Plaintiff, v. PLLC (2025)

Plaintiff, Zubair Patel, is suing defendants, The Rose Law Group PLLC and Jessie C. Rose, for alleged malpractice during their representation of plaintiff in an arbitration proceeding. Defendants move to dismiss the complaint. The motion is granted.

BACKGROUND

Plaintiff retained defendants to pursue employment-discrimination and retaliation claims in Supreme Court against his employer, Macy's Inc. (NYSCEF No. 1 at ¶ 5.) In that action, Macy's moved to compel arbitration. Supreme Court granted the motion. (See Patel v Macys Inc., 2017 WL 4574887, *2 [Sup Ct, NY County 2017, Kotler J.].) Plaintiff—represented by defendants—appealed the Supreme Court decision. The appeal was unsuccessful. (See Patel v Macys Inc., 168 AD3d 632, 632 [1st Dept 2019].) The matter then went to arbitration.

The arbitrator dismissed plaintiff's claims. The arbitrator concluded that plaintiff "did not carry his burden" of demonstrating discrimination based on race or national origin; retaliation; or aider and abettor liability by plaintiff's individual supervisors at Macy's. (NYSCEF No. 6 at 1, 31-31 [arbitrator's November 2021 decision].)

After arbitration, plaintiff (represented by different counsel and not defendants) petitioned to vacate the arbitration award. (NYSCEF No. 7.) Supreme Court denied the petition. (See Patel v Macy's, Inc., 2022 WL 6353294, *3 [Sup Ct, NY County 2022, Kotler, J.].) The First Department affirmed. (See Matter of Patel v Macy's Inc., 227 AD3d 551, 551 [1st Dept 2024].)

Plaintiff now brings this action against defendants. Plaintiff asserts claims for malpractice, breach of fiduciary duty, fraudulent misrepresentation, and unjust enrichment arising from defendants' alleged conduct during the arbitration proceeding. Plaintiff also seeks relief under Judiciary Law § 487.

Defendants move under CPLR 3211 (a) (1) and (7) to dismiss the complaint. The motion is granted under CPLR 3211 (a) (7).

DISCUSSION

I. First Cause of Action (Malpractice)

Plaintiff alleges that defendants committed malpractice during the arbitration proceeding by (i) failing to inform plaintiff that defendants signed a protective order that prevented plaintiff's access to his supervisors' personnel files, which, plaintiff contends, were crucial to the arbitration; (ii) incompetently handling discovery and representing to plaintiff that he had submitted plaintiff's discovery responses to Macy's; and (iii) failing to put evidence of plaintiff's damages into the arbitration record.¹ (NYSCEF No. 1 at 3-6.) Plaintiff claims that "he would have prevailed or achieved a more favorable outcome in the underlying matter" but for defendants' conduct. (NYSCEF No. 20 at 29.)

Defendants argue that plaintiff's allegations that he would have succeeded in the underlying arbitration but for defendants' conduct are conclusory and speculative. Defendants further argue that any failure to put damages into the record is a nonissue, because the arbitrator never reached the issue of damages. Plaintiff contends that had defendants properly conducted discovery in accordance with plaintiff's specifications and obtained the documents plaintiff sought, that discovery would have "changed the course of the case and was the proximate cause of the eventual loss of the case." (NYSCEF No. 20 at 8.) Additionally, plaintiff contends that "[a]s a result of the Plaintiff not having any damages on record, he could [not] establish credibility and lost the arbitration and any settlement offer which was imminent." (NYSCEF No. 20 at 17.) The court agrees with defendants.

A claim for legal malpractice has "three elements: (1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff's losses; and (3) proof of actual damages." (Carasco v Schlesinger, 222 AD3d 476, 477 [1st Dept 2023].) On a malpractice claim "based on the alleged mishandling of a litigation, . . . plaintiff must satisfy the case within a case requirement, demonstrating that but for the attorney's conduct the plaintiff client would have prevailed in the underlying matter or would not have sustained any ascertainable damages." (Id. [internal quotation marks omitted].)

Plaintiff's allegations that the additional discovery would have tilted the arbitration in his favor are speculative. Plaintiff assumes that the arbitrator would have credited the discovery he sought instead of, or in addition to, the in-person testimony and other exhibits provided at the arbitration hearing. But it is unclear whether the personnel files or other discovery might have affected the arbitrator's credibility assessment of the witnesses at trial or the weight of exhibits upon which the arbitrator based his decision. (See NYSCEF No. 6 at 13-14 [arbitrator's decision]; see (Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 118 AD3d 542 [1st Dept 2014] [holding that plaintiff's allegations that an arbitral panel would have credited evidence not offered at the proceeding were speculative].) This is particularly so with respect to the personnel files, the contents of which are unknown.

This court further concludes that defendants' failure to introduce evidence of damages into the record would not have altered the outcome of the arbitration. The arbitrator did not reach the issue of damages. He found that plaintiffs lost on liability. (See NYSCEF No. 6 at 31.) Evidence of plaintiff's monetary and emotional injury was unnecessary. Additionally, plaintiff provides no allegation to support that having the damages in the record would have induced Macy's to propose a settlement.

The branch of defendants' motion to dismiss plaintiff's malpractice claim is granted.

II. Second Cause of Action (Breach of Fiduciary Duty)

Plaintiff's second claim is for breach of fiduciary duty. Defendants argue that this claim duplicates plaintiff's malpractice claim and must therefore be dismissed.

Plaintiff, on the other hand, argues that "[d]efendants had a duty to protect their client's (Plaintiff) legal interests and adhere to its duty to accord undivided loyalty to its client but failed to do so." (NYSCEF No. 20 at 14.) Plaintiff argues that his malpractice claim "is based on . . . poor lawyering by failing to perform certain services with due care" but that his breach-of-fiduciary claim "is premised upon Defendant's egregious failures to deal fairly, honestly and with undivided loyalty by avoiding conflicts of interest and honoring the clients' interests over the lawyer's." (Id.)

The court agrees with defendants. Plaintiff alleges that defendants' judgment was impaired because he was incompetent in conducting in discovery; that defendants intentionally concealed mistakes; that defendants made knowing misrepresentations and ignored plaintiff's specific instructions; and that defendants failed to present evidence on plaintiff's damages. (NYSCEF No. 20 at 15-17.) Plaintiff's claims either stem the same nucleus of facts as his malpractice claim or are conclusory in nature. Additionally, to the extent plaintiff contends that a conflict of interest may serve as a basis for a breach-of-fiduciary-duty claim, plaintiff alleges no fact that defendants acted with "divided loyalt[y]" when defendants represented plaintiff. (See Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 8 [1st Dept 2008] [holding that allegations supporting a conflict of interest may support an independent claim for breach of fiduciary duty that is separate from a malpractice claim].)

The branch of defendants' motion to dismiss plaintiff's breach-of-fiduciary-duty claim is granted.

III. Third Cause of Action (Fraudulent Misrepresentation)

With respect to plaintiff's fraudulent-misrepresentation claim, plaintiff alleges that defendants misrepresented that they had the skill and resources to handle plaintiff's case and that he relied on that misrepresentation in hiring defendants. Plaintiff also alleges that defendant "Rose repeatedly and intentionally made false statements to [plaintiff] that he had submitted all the documents that [plaintiff] submitted in response to Macy's interrogatory and document requests." (NYSCEF No. 1 at ¶ 16.) Additionally, plaintiff claims that he "had made a request early in Discovery to have Mr. Rose place the damages calculations on record" and that Rose "assured him that he completed this request" (Id. at ¶ 22.)

But plaintiff's assertions of misrepresentation stem from the same nucleus of facts as his malpractice claim. This court therefore concludes that plaintiff's fraudulent misrepresentation duplicates his malpractice claim. (Sitar v Sitar, 50 AD3d 667, 670 [2d Dept 2008] [holding that a fraudulent-misrepresentation claim duplicates malpractice claim, when it "arise[s] from the same facts as the cause of action alleging legal malpractice and d[oes] not allege distinct damages"].)

The branch of defendants' motion to dismiss plaintiff's fraudulent-misrepresentation claim is granted.

IV. Fourth Cause of Action (Unjust Enrichment and Judiciary Law § 487)

Plaintiff's fourth claim is for unjust enrichment and punitive damages under Judiciary Law § 487. Plaintiff alleges that defendants disregarded their fiduciary duties to him by withholding information and failing to present damages to the arbitrator (and to Macy's attorneys for settlement purposes). (NYSCEF No. 1 at ¶¶ 43-45.) Plaintiff also asserts that defendants violated Judiciary Law 487 "due to the egregious and deliberate nature of Defendant's wrongdoing." (NYSCEF No. 1 ¶ at 47.)

Defendants contend that plaintiff's unjust-enrichment claim duplicates his malpractice claim and that plaintiff has not pleaded a claim under Judiciary Law § 487. The court agrees.

The court first concludes that plaintiff's unjust-enrichment claim duplicates his malpractice claim. Plaintiff's unjust enrichment claim is "predicated on the same factual allegations as so much of the . . . cause of action as alleged legal malpractice, and the complaint did not allege damages distinct from the damages that were allegedly caused by legal malpractice." (Blanco v Polanco, 116 AD3d 892, 897 [2d Dept 2014].)

The court also concludes that plaintiff states no claim under Judiciary Law § 487. Plaintiff alleges that defendants "repeatedly [lied] to the Plaintiff that he had submitted all important documents in Discovery and placed the damages on record."² (NYSCEF No. 20 at 19; see NYSCEF No. 1 at ¶¶ 16, 22.) Judiciary Law § 487 provides that "an attorney 'who . . . [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party' is guilty of a misdemeanor and may be liable to the injured party for treble damages in a civil action." (Bill Birds, Inc., 35 NY3d 173, 177 [2020], quoting Judiciary Law § 487 [a] [1].) But § 487 does not apply in the arbitration context—from which plaintiff's allegations arise. (Doscher v Mannatt, Phelps & Phillips, LLP, 148 AD3d 523, 524 [1st Dept 2017] ["Judiciary Law § 487 . . . does not apply to attorney misconduct during an arbitral proceeding."].)

The branch of defendants' motion to dismiss plaintiff's unjust-enrichment and Judiciary Law § 487 claim is granted.

Accordingly, it is

ORDERED that defendants' motion to dismiss the complaint against them is granted; and the complaint is dismissed, with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that plaintiff serve a copy of this order with notice of its entry on defendants and on the office of the County Clerk (using the NYSCEF document type "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.

DATE 11/19/2025

Hon. Gerald Lebovits, J.S.C.

FOOTNOTES

1.   Plaintiff's opposition on the malpractice claim is limited to defendants' conduct during the arbitration proceeding and the motion to vacate the arbitration award (the latter for which plaintiff obtained different counsel) (see NYSCEF No. 20 at 24-25), and not defendants' conduct in appealing Supreme Court's decision to compel arbitration.

2.   Plaintiff also alleges that defendants misrepresented that they had the experience and resources to handle his employment-discrimination case. (NYSCEF No. 1 at ¶ 12.) But this allegation does not support a Judiciary Law § 487 violation. That alleged misrepresentation occurred before the initial Supreme Court action or arbitration. (See Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 178 [2020] [noting that if the "purported deceit occurred before the judicial action was commenced, there was no court or party to be deceived within the meaning of the statute"] [internal quotation marks omitted].)

Gerald Lebovits, J.