Alphaus Williams, appellant, v. Carina Biggs, etc., et al., respondents, Sara Kim, etc., et al., defendants. (2026)

Argued—January 5, 2026

DECISION & ORDER

O/

In an action, inter alia, to recover damages for fraud and violation of Judiciary Law § 487, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated December 22, 2020, and (2) an order of the same court dated October 25, 2021.  The order dated December 22, 2020, granted the motion of the defendants Law Offices of Goldfarb & Gerzog, Law Offices of Steven M. Goldfarb, Steven M. Goldfarb, and Karen Levine pursuant to CPLR 2004 and 3012(d) for an extension of time to answer or otherwise respond to the complaint.  The order dated October 25, 2021, granted that branch of the motion of the defendant Ira D. Gerzog which was to dismiss the complaint insofar as asserted against him and granted the separate motions of the defendants Law Offices of Goldfarb & Gerzog, Law Offices of Steven M. Goldfarb, Steven M. Goldfarb, and Karen Levine and the defendants Carina Biggs, Rhonda L. Rosen, and Dawn Maynard to dismiss the complaint insofar as asserted against each of them.

ORDERED that the order dated December 22, 2020, is affirmed, without costs or disbursements;  and it is further,

ORDERED that the order dated October 25, 2021, is modified, on the law, by deleting the provision thereof granting those branches of the separate motions of the defendant Ira D. Gerzog, and the defendants Law Offices of Goldfarb & Gerzog, Law Offices of Steven M. Goldfarb, Steven M. Goldfarb, and Karen Levine which were to dismiss the nineteenth cause of action, for declaratory relief, insofar as asserted against each of them, and substituting therefor a provision denying those branches of the separate motions;  as so modified, the order is affirmed, without costs or disbursements.

This action stems from an underlying action commenced by the plaintiff against New York City Health and Hospitals Corporation (hereinafter NYCHHC), several physicians that NYCHHC employed, including the defendant Carina Biggs, and Kings County Hospital Center (hereinafter KCHC) to recover damages for medical malpractice and lack of informed consent.  The plaintiff initially was represented in the underlying medical malpractice action by the defendant Law Offices of Goldfarb & Gerzog (hereinafter G & G).  The defendant McAloon & Friedman, P.C. (hereinafter M & F), and the defendants Laura R. Shapiro, Lisa B. Goldstein, and Michael S. Kivowitz (hereinafter collectively the M & F defendants) represented the defendants in the underlying medical malpractice action.

The defendant Ira D. Gerzog left G & G on or about May 25, 2018, and the plaintiff allegedly executed a consent to change attorney form designating Law Offices of Steven M. Goldfarb (hereinafter LOSMG) as in coming counsel.  After LOSMG assumed the plaintiff's representation, in October 2018, the defendant Rhonda Rosen, a deputy litigation chief of the medical litigation unit of NYCHHC, made a settlement offer on behalf of NYCHHC to the plaintiff.  Thereafter, the defendant Steven M. Goldfarb executed a stipulation discontinuing the underlying medical malpractice action against the physician defendants only.  The case was marked “SETTLED BEFORE TRIAL” on the New York State Courts Electronic Filing System.

On or about March 20, 2020, the plaintiff commenced this action against Goldfarb, G & G, LOSMG, and the defendant Karen Levine, who worked for G & G and LOSMG (hereinafter collectively the Goldfarb defendants), the defendant Sara Kim, a resident physician who the plaintiff alleged forged his signature on an informed consent form, Gerzog, the M & F defendants, as well as Biggs, Rosen, and the defendant Dawn Maynard, an individual who certified NYCHHC's records.  Biggs, Rosen, and Maynard are employed by NYCHHC (hereinafter collectively the municipal defendants).  The complaint alleged that the defendants, acting in concert with each other and aiding and abetting each other, used forged medical records in the underlying medical malpractice action to minimize the defendants' liability and to induce the plaintiff to accept the settlement offer.  The complaint asserted 20 cases of action, including violations of Judiciary Law § 487, legal malpractice, fraud, forgery, prima facie tort, intentional infliction of emotional distress, conversion, breach of fiduciary duty, breach of contract, and for declaratory relief.

In October 2020, Gerzog moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him or, in the alternative, to stay the action pursuant to CPLR 2201 as premature pending resolution of the underlying medical malpractice action.

In November 2020, the municipal defendants moved pursuant to General Municipal Law §§ 50–e, 50–i, and 50–k and CPLR 3211(a) to dismiss the complaint insofar as asserted against them, arguing that the plaintiff failed to timely serve a notice of claim, that this action was barred by the statute of limitations, and that the complaint failed to state a cause of action against them.

In November 2020, after the plaintiff failed to respond to a request of the Goldfarb defendants' attorney for an extension of time to answer the complaint, the Goldfarb defendants moved pursuant to CPLR 2004 and 3012(d) for an extension of time to answer or otherwise respond to the complaint.  In the order dated December 22, 2020, the Supreme Court granted the motion and directed the Goldfarb defendants to answer or otherwise respond to the complaint by February 2, 2021 (hereinafter the extension order).  The plaintiff appeals.

In February 2021, the Goldfarb defendants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

In an order dated October 25, 2021, the Supreme Court granted that branch of Gerzog's motion which was to dismiss the complaint insofar as asserted against him and granted the separate motions of the municipal defendants and the Goldfarb defendants to dismiss the complaint insofar as asserted against each of them.  The court determined that the complaint failed to state cognizable causes of action against Gerzog or the Goldfarb defendants and that dismissal was warranted in favor of the municipal defendants because the plaintiff failed to timely file a notice of claim or timely move for leave to file a late notice of claim.  The plaintiff appeals from this order.

Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in granting the Goldfarb defendants' motion for an extension of time to answer or otherwise respond to the complaint, particularly considering that the record is bereft of any evidence of willfulness on the part of the Goldfarb defendants or that the plaintiff was prejudiced by the delay (see CPLR 2004;  3012[d];  Carrington v. Northwell Health, 234 AD3d 659, 660;  Federal Natl. v. Williams, 187 AD3d 991, 991–992).  The Goldfarb defendants were not required to submit an affidavit of merit or demonstrate a meritorious defense to the action because their motion was made before their time to answer had expired (see Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 357).  Although the parties dispute whether service was effectuated on G & G by substituted service on November 2, 2020, or by personal service on a partner on July 27, 2020 (see Nath v Chemtob Moss Forman & Beyda, LLP, 231 AD3d 546, 548), due to the tolling provision of Executive Order (A.Cuomo) Nos. 202.8 and 202.67 (9 NYCRR 8.202.8, 8.202.67), enacted in March 2020 and October 2020, respectively, by then Governor Andrew Cuomo in response to the COVID–19 pandemic, the Goldfarb defendants' motion, made 19 days after the tolling period ended, was timely in either instance (see CPLR 320[a];  McLaughlin v. Snowlift, Inc., 214 AD3d 720, 721;  Brash v. Richards, 195 AD3d 582, 582).

We agree with the plaintiff that the Supreme Court erred in directing dismissal of the complaint insofar as asserted against the municipal defendants pursuant to General Municipal Law §§ 50–e, 50–i, and 50–k for failure to timely file a notice of claim.  “Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to commencing an action against the New York City Health and Hospitals Corporation” (Urena v New York City Health & Hosps.  Corp., 35 AD3d 446, 446;  see McKinney's Unconsolidated Laws of N.Y. § 7401[2];  General Municipal Law § 50–e[1][a];  Scantlebury v New York City Health & Hosps.  Corp., 4 NY3d 606, 609–610).  However, service of a notice of claim upon an “employee of a public corporation shall not be a condition precedent to the commencement of an action or special proceeding against such person” (General Municipal Law § 50–e[1][b] ).  “If an action or special proceeding is commenced against such person, but not against the public corporation, service of the notice of claim upon the public corporation shall be required only if the corporation has a statutory obligation to indemnify such person under this chapter or any other provision of law” (id.;  see Pinzon v United Rentals N. Am., Inc., 225 AD3d 905, 906–907).

General Municipal Law § 50–k expressly conditions NYCHHC's duty to indemnify an employee upon the employee's compliance with the provisions of General Municipal Law § 50–k(4) (see General Municipal Law § 50–k[2] ).  “The notice of claim requirement set forth in General Municipal Law § 50–e (1)(b) is not triggered where the employee fails to comply with the provisions of General Municipal Law § 50–k(4)” (Chambliss v University Group Med. Assoc., 137 AD3d 1183, 1185).  In support of their motion, the municipal defendants failed to offer evidence that they complied with the requirements of General Municipal Law § 50–k(4) (see Pinzon v United Rentals N. Am., Inc., 225 AD3d at 907;  Ayers v. Mohan, 145 AD3d 553, 555;  Chambliss v University Group Med. Assoc., 137 AD3d at 1185;  Hassan v. Woodhull Hosp. & Med. Ctr., 282 A.D.2d 709, 710–711).  Since the municipal defendants failed to do so, the Supreme Court erred in directing dismissal of the complaint insofar as asserted against them pursuant to General Municipal Law §§ 50–e, 50–i, and 50–k.

However, we agree with the municipal defendants that they demonstrated their entitlement to dismissal of the complaint insofar as asserted against them pursuant to CPLR 3211(a)(7).  “On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Feldman v. Nassau Life Ins. Co., 224 AD3d 801, 803 [internal quotation marks omitted] ).  “Where, as here, ‘evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal shall not eventuate’ ” (id., quoting Gruber v. Donaldsons, Inc., 201 AD3d 887, 888;  see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275).

“The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages” (Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 559;  see Sneider v Great S. Bay Surgical Assoc.   & Vascular Lab, LLP, 235 AD3d 685, 687;  City of Long Beach v. Agostisi, 221 AD3d 776, 778).  “The elements of a cause of action to recover for constructive fraud are the same as those to recover for actual fraud with the crucial exception that the element of scienter upon the part of the defendant, his [or her] knowledge of the falsity of his [or her] representation, is dropped ․ and is replaced by a requirement that the plaintiff prove the existence of a fiduciary or confidential relationship warranting the trusting party to repose his [or her] confidence in the defendant and therefore to relax the care and vigilance he [or she] would ordinarily exercise in the circumstances” (Levin v. Kitsis, 82 AD3d 1051, 1054 [internal quotation marks omitted] ).

Further, the elements of a cause of action to recover damages for aiding and abetting fraud are (1) the existence of an underlying fraud, (2) knowledge of the fraud by the aider and abettor, and (3) substantial assistance by the aider and abettor in the achievement of the fraud (see JPMorgan Chase Bank, N.A. v Canova, 239 AD3d 837, 839;  Betz v. Blatt, 160 AD3d 696, 700).  “Substantial assistance requires an affirmative act on the defendant's part,” and “[m]ere inaction by an alleged aider or abettor constitutes substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff” (Betz v. Blatt, 160 AD3d at 700 [internal quotation marks omitted] ).

Moreover, “New York does not recognize civil conspiracy to commit a tort as an independent cause of action” (Mohammad v. Rehman, 236 AD3d 892, 893 [internal quotation marks omitted] ).  “However, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort, and establish that those actions were part of a common scheme” (id. [internal quotation marks omitted] ).  “In order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement” (id. [internal quotation marks omitted];  see Alexander & Alexander of N.Y. v Fritzen, 68 N.Y.2d 968, 969).

“A claim rooted in fraud must be pleaded with the requisite particularity under CPLR 3016(b)” (Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d at 559).  The purpose of CPLR 3016(b) “is to inform a defendant of the complained-of incidents,” and “ ‘should not be so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting a fraud’ ” (id., quoting Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491).  “Although there is certainly no requirement of ‘unassailable proof’ at the pleading stage, the complaint must ‘allege the basic facts to establish the elements of the cause of action’ ” (id., quoting Pludeman v Northern Leasing Sys., Inc., 10 NY3d at 492).  Accordingly, “the pleading requirements of CPLR 3016(b) may be met when the facts are sufficient to permit a reasonable inference of the alleged conduct” (Gruber v. Donaldsons, Inc., 201 AD3d at 889), including, in a cause of action to recover damages for aiding and abetting fraud, “the adverse party's knowledge of, or participation in, the fraudulent scheme” (Schiano v. Harsanyi, 230 AD3d 820, 821 [internal quotation marks omitted] ).

The fourth cause of action, alleging “intentional fraud,” insofar as asserted against Biggs alleged that Biggs told the plaintiff to return for a colostomy reversal surgery in one year, which the plaintiff allegedly relied on, but documented in the discharge summary that she advised him to return in six months.  The fourth cause of action failed to state a cause of action to recover damages for fraud because it did not allege “damages that were separate and distinct from those caused by the alleged malpractice” and did not allege that the plaintiff was deprived of the opportunity for cure (Abraham v. Kosinski, 305 A.D.2d 1091, 1092).

The fifth cause of action, entitled “FRAUD AND DECEIT:  FORGERY,” alleged that the physician defendants in the underlying medical malpractice action, including Biggs, with the assistance of the M & F defendants, prepared a forged informed consent form for a July 9, 2013 surgical procedure.  “Forgery is the ‘fraudulent making of a writing to the prejudice of another's rights ․ or the making malo animo of any written instrument for the purpose of fraud and deceit’ ” (Matter of Hersh, 198 AD3d 763, 765, quoting Piedra v. Vanover, 174 A.D.2d 191, 194).  “Forgery is simply one ‘species' under the broad genus of fraud” (id., quoting Piedra v. Vanover, 174 A.D.2d at 194).  Accordingly, to state a cause of action to recover damages for fraud arising from forgery, a plaintiff must “allege the essential elements of a cause of action sounding in fraud” (Ferdico v. Zweig, 82 AD3d 1151, 1154).  Among other things, the fifth cause of action did not allege, in nonconclusory fashion, that the plaintiff justifiably relied on the allegedly forged informed consent form (see Matter of Hersh, 198 AD3d at 772;  Ferdico v. Zweig, 82 AD3d at 1154).  The plaintiff refused to execute the general release because he believed the medical records were forged.

The seventh cause of action, alleging constructive fraud by Maynard in certifying the accuracy of the plaintiff's medical records, failed to state a cause of action because it failed to allege the existence of a fiduciary or special relationship between the plaintiff and Maynard (see Sneider v Great S. Bay Surgical Assoc.   & Vascular Lab, LLP, 235 AD3d at 687;  Levin v. Kitsis, 82 AD3d at 1054;  Sentlowitz v. Cardinal Dev., LLC, 63 AD3d 1137, 1138) and also failed to allege that the plaintiff relied on the alleged misrepresentation by Maynard (see DeMartino v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 189 AD3d 774, 775).

The eighth cause of action failed to state a cause of action to recover damages for aiding and abetting fraud insofar as asserted against Rosen or Maynard.  Even liberally construing the allegations in the complaint, the complaint failed to state a cause of action to recover damages for fraud based upon the alleged forgery of the plaintiff's medical records and various affirmative defenses and denials asserted by the M & F defendants in pleadings in the underlying medical malpractice action because it failed to sufficiently allege that the plaintiff relied on the alleged forgery or reasonably relied on the alleged misrepresentations asserted by the M & F defendants in the various affirmative defenses and denials (see Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 828;  Williams v. Biggs, _ AD3d _ [Appellate Division Docket No. 2021–03673;  decided herewith];  Mohammad v. Rehman, 236 AD3d at 893 Clevenger v. Yuzek, 222 AD3d 931, 935).  Accordingly, because the plaintiff failed to plead “the existence of an underlying fraud,” the cause of action to recover damages for aiding and abetting fraud necessarily fails (see JPMorgan Chase Bank, N.A. v Canova, 239 AD3d at 839).  Further, the factual allegations in the complaint did not support a reasonable inference that Rosen or Maynard had actual knowledge of the alleged fraud (see Paraco Gas Corp. v Jay Z. Gerlitz & Assoc., Inc., 225 AD3d 615, 618;  JPMorgan Chase Bank, N.A. v. Canova, 239 AD3d at 839).

The thirteenth cause of action, to recover damages for conspiracy to commit fraud, failed to state a cause of action insofar as asserted against the municipal defendants because it failed to connect the municipal defendants' actions to a cognizable cause of action to recover damages for fraud (see Mohammad v. Rehman, 236 AD3d at 894;  Clevenger v. Yuzek, 222 AD3d at 936).

The first cause of action, to recover damages for violation of Judiciary Law § 487, failed to state a cause of action upon which relief can be granted against Rosen.  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 liable for treble damages (Judiciary Law § 487[1] ).  “Relief pursuant to Judiciary Law § 487 is not lightly given, and requires a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys” (Kaufman v. Moritt Hock & Hamroff, LLP, 192 AD3d 1092, 1093 [citation and internal quotation marks omitted];  see Savitt v. Greenberg Traurig, LLP, 126 AD3d 506, 507;  Chowaiki & Co. Fine Art Ltd. v. Lacher, 115 AD3d 600, 601).  “A cause of action alleging a violation of Judiciary Law § 487 must be pleaded with specificity” (Kaufman v. Moritt Hock & Hamroff, LLP, 192 AD3d at 1093 [internal quotation marks omitted] ).

The first cause of action failed to allege facts upon which it can reasonably be inferred that Rosen intended to deceive the Supreme Court (see Klein v. Rieff, 135 AD3d 910, 912).  Additionally, even accepting the allegations in the first cause of action as true, Rosen's alleged conduct of making a settlement offer does not allege “ ‘egregious conduct or a chronic and extreme pattern of behavior on’ ” Rosen's part (Grasso v. Guarino, 227 AD3d 872, 873, quoting Kaufman v. Moritt Hock & Hamroff, LLP, 192 AD3d at 1093).

The eighteenth cause of action alleged aiding and abetting breach of fiduciary duty.  “A cause of action [alleging the] aiding and abetting [of a] breach of fiduciary duty merely requires a prima facie showing of a fiduciary duty owed to plaintiff ․ a breach of that duty, and defendant's substantial assistance ․ in effecting the breach, together with resulting damages” (Monaghan v. Ford Motor Co., 71 AD3d 848, 850 [internal quotation marks omitted];  see Kaufman v. Cohen, 307 A.D.2d 113, 125).  “Although a plaintiff is not required to allege that the aider and abettor had an intent to harm, there must be an allegation that such defendant had actual knowledge of the breach of duty” (Kaufman v. Cohen, 307 A.D.2d at 125).  “Constructive knowledge of the breach of fiduciary duty by another is legally insufficient to impose aiding and abetting liability” (id.).

Here, the allegation that Rosen had actual knowledge that the Goldfarb defendants and Gerzog allegedly breached their fiduciary duty to the plaintiff based upon their alleged failure to conduct proper discovery is “extremely sparse and wholly conclusory” (Kaufman v. Cohen, 307 A.D.2d at 125).  Further, Rosen's alleged conduct of making a settlement offer to the plaintiff's counsel “hardly constitutes assisting in a breach of fiduciary duty by itself” (id. at 126).  Accordingly, the Supreme Court properly directed dismissal of the eighteenth cause of action insofar as asserted against Rosen.

The twentieth cause of action insofar as asserted against Biggs failed to state a cause of action to recover damages for breach of contract because it failed to sufficiently allege the existence of a contract between the plaintiff and Biggs (see Singh v. T–Mobile, 232 AD3d 662, 664–665;  Hymowitz v. Nguyen, 209 AD3d 997, 1000).  Additionally, the breach of contract cause of action, which is premised upon Biggs's alleged failure to remove the plaintiff's appendix, is “an attempt to plead as a contract action one which is essentially a malpractice action” (Chaff v. Parkway Hosp., 205 A.D.2d 571, 573 [internal quotation marks omitted] ).  Accordingly, the Supreme Court properly directed dismissal of the twentieth cause of action.

Contrary to the plaintiff's contentions, the Supreme Court properly granted that branch of Gerzog's motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him and properly granted the separate motion of the Goldfarb defendants pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, with the exception of the nineteenth cause of action.  The first cause of action, to recover damages for violation of Judiciary Law § 487(1), failed to allege sufficiently specific facts from which it could be reasonably inferred that Gerzog or the Goldfarb defendants acted with the requisite degree of scienter (see Langton v. Sussman & Watkins, 238 AD3d 726, 730;  Guliyev v. Banilov & Assoc., P.C., 221 AD3d 589, 591;  Briarpatch Ltd., L.P. v Frankfurt Garbus Klein & Selz, P.C., 13 AD3d 296, 297–298).  The first cause of action also failed to adequately allege that Gerzog's allegedly deceitful conduct proximately caused the plaintiff's damages (see Barouh v Law Offs. of Jason L. Abelove, 131 AD3d 988, 990).

The second cause of action failed to state a cause of action to recover damages for violation of Judiciary Law § 487(2).  An attorney violates Judiciary Law § 487(2) where he “[w]illfully delays his client's suit with a view to his own gain” (id.;  see Coccia v. Liotti, 70 AD3d 747, 754).  With respect to Gerzog, the allegations are largely based on conduct that occurred after Gerzog had departed from G & G, and the plaintiff's allegation that Gerzog delayed filing the note of issue to force secret settlement discussions, in addition to being speculative, contradicts his allegation that Gerzog prematurely filed the note of issue before discovery was complete.  In any event, the allegation that Gerzog delayed filing the note of issue did not amount to willful delay (see Sciocchetti v. Molinsek, 223 AD3d 1046, 1048).  Further, the allegations that Goldfarb failed to make various motions, failed to retain a forensic document examiner after accepting the settlement offer, or failed to return the executed consent to change attorney form designating the plaintiff as proceeding pro se did not support an inference that Goldfarb intended to delay the case for his own gain (see Sciocchetti v. Molinsek, 223 AD3d at 1047).  The plaintiff alleged that Goldfarb requested that the plaintiff sign the general release, which would have resolved the underlying medical malpractice action, not delayed it.  Moreover, considering that Goldfarb was entitled to a percentage of any verdict or settlement the plaintiff received upon the execution of the general release, it is not reasonable to infer that he refused to prosecute the case for his own gain.

The eighth cause of action, to recover damages for aiding and abetting fraud, failed to state a cause of action against Gerzog or the Goldfarb defendants because it failed to adequately plead that those defendants had actual knowledge of the alleged fraud or that they provided substantial assistance in the alleged fraud's commission (see Lumen at White Plains, LLC v Stern, 135 AD3d 600, 600).  The allegations that Goldfarb and Gerzog should have recognized that the medial records were forged due to alleged inconsistencies in the medical records amounted to, “at best, constructive knowledge, which is insufficient to support an aiding and abetting fraud claim” (id.;  see Gregor v. Rossi, 120 AD3d 447, 448).

The Supreme Court properly directed dismissal of the third cause of action, to recover damages for constructive fraud, insofar as asserted against Gerzog and the Goldfarb defendants.  The third cause of action, which alleged that Gerzog and the Goldfarb defendants acted as “conduit[s]” for the fraud of other defendants and concealed the forgery from the plaintiff, failed to allege that the plaintiff justifiably relied on the allegedly forged medical records (see Matter of Hersh, 198 AD3d at 772;  Ferdico v. Zweig, 82 AD3d at 1154).

The Supreme Court properly directed dismissal of the fifth cause of action, to recover damages for forgery, insofar as asserted against G & G and LOSMG.  Among other things, the complaint failed to allege that G & G and LOSMG forged the informed consent form or that the plaintiff justifiably relied upon the allegedly forged informed consent form (see Matter of Hersh, 198 AD3d at 772;  Ferdico v. Zweig, 82 AD3d at 1154).

The ninth cause of action failed to state a cause of action to recover damages for prima facie tort against LOSMG, because the conclusory allegation that LOSMG was motivated solely by malice, in that it, inter alia, asked the plaintiff his position on signing the general release and participated in an alleged fraudulent scheme, contradicted the plaintiff's allegation that LOSMG was motivated by a desire to ingratiate itself with Rosen since it had other pending lawsuits against NYCHHC (see Banschick v. Johnson, 222 AD3d 608, 610;  Phillips v. New York Daily News, 111 AD3d 420, 421).  Additionally, the ninth cause of action failed to allege that the plaintiff suffered special damages (see Phillips v. New York Daily News, 111 AD3d at 421;  Del Vecchio v. Nelson, 300 A.D.2d 277, 278).

The Supreme Court properly directed dismissal of the eleventh cause of action, to recover damages for fraud in the inducement, insofar as asserted against G & G, Gerzog, and LOSMG.  “The elements of a claim for fraudulent inducement are ‘a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury’ ” (United States Life Ins. Co. in the City of N.Y. v Horowitz, 192 AD3d 613, 614, quoting Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421).  Statements which constitute mere opinions cannot be the basis for a claim of fraud (see High Tides, LLC v. DeMichele, 88 AD3d 954, 958).  Here, Gerzog's alleged statement to the plaintiff that Goldfarb was a skilled trial attorney constituted an opinion (see Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 179;  Kato Intl. LLC v. Gerard Fox Law, P.C., 195 AD3d 516, 517;  High Tides, LLC v. DeMichele, 88 AD3d at 958;  DH Cattle Holdings Co. v. Smith, 195 A.D.2d 202, 208;  cf.  White v. Davidson, 150 AD3d 610).  Further, even accepting as true the plaintiff's allegation that he relied upon Gerzog's statement in choosing to retain LOSMG instead of finding new counsel, the plaintiff failed to allege that he suffered an injury as a result of that reliance.  Moreover, even accepting as true the plaintiff's allegation that Goldfarb told the plaintiff that Gerzog retired, which was false, to induce the plaintiff to retain Goldfarb as his attorney, the plaintiff failed to allege that he suffered damages directly resulting from Goldfarb's alleged misrepresentation (see CKR Law LLP v. DiPaolo, 209 AD3d 427, 428;  Gottbetter v. Crone Kline Rinde, LLP, 162 AD3d 579, 580).

The twelfth cause of action failed to state a cause of action to recover damages for conversion against G & G and LOSMG because the complaint did not allege that the plaintiff ever had ownership, possession, or control of the document over which the defendants allegedly assumed control (see Orchid Constr.  Corp. v. Gottbetter, 89 AD3d 708, 709;  Goldfine v. Sichenzia, 73 AD3d 854, 854–855;  cf.  Volodarsky v Moonlight Ambulette Serv., Inc., 122 AD3d 619, 620).

The Supreme Court properly directed dismissal of the sixteenth cause of action, to recover damages for legal malpractice, insofar as asserted against G & G. The sixteenth cause of action alleged that G & G committed legal malpractice by failing to assert a battery cause of action against a resident who assisted in a July 9, 2013 surgical procedure.  “To state a cause of action to recover damages for legal malpractice, a plaintiff must allege:  (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession;  and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Ofman v. Richland, 234 AD3d 865, 868 [quotations omitted] ).

Contrary to the Supreme Court's holding, the retainer with G & G did not “conclusively establish[ ]” that prosecuting a battery cause of action was outside the scope of the retainer (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38).  However, the complaint failed to sufficiently allege that G & G proximately caused the plaintiff damages by failing to assert a battery cause of action upon which the plaintiff would have prevailed (see Rudovic v Law Off. of Timothy A. Green, 200 AD3d 814, 815;  Benishai v. Epstein, 116 AD3d 726, 728;  cf.  Aristakesian v Ballon Stoll Bader & Nadler, P.C., 165 AD3d 1023, 1024).

The seventeenth cause of action failed to state a cause of action to recover damages for breach of fiduciary duty.  “To state a cause of action to recover damages for breach of fiduciary duty, a plaintiff must allege:  ‘(1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduct’ ” (Parekh v. Cain, 96 AD3d 812, 816, quoting Rut v. Young Adult Inst., Inc., 74 AD3d 776, 777).  The allegations must be pleaded with the requisite particularity under CPLR 3016(b) (see Parekh v. Cain, 96 AD3d at 816).  Additionally, “[i]n the attorney liability context, the breach of fiduciary duty claim is governed by the same standard as a legal malpractice claim” (Knox v Aronson, Mayefsky & Sloan, LLP, 168 AD3d 70, 75–76).  “Accordingly, to recover damages against an attorney arising out of the breach of the attorney's fiduciary duty, plaintiff must establish the ‘but for’ element of malpractice” (id. at 76).

Here, the seventeenth cause of action failed to sufficiently allege that the plaintiff suffered damages as a result of Gerzog's alleged misconduct (see DeMartino v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 189 AD3d at 775;  Rut v. Young Adult Inst., Inc., 74 AD3d at 777).  Further, the complaint did not allege that, but for Goldfarb's alleged misconduct in accepting NYCHHC's settlement offer, the plaintiff would have received a higher settlement offer or obtained a greater award at trial and merely alleged, in conclusory fashion, that the plaintiff suffered “loss of enjoyment of life” and “irreperable harm ․ in an amount to be determined at trial.”  Conclusory allegations of emotional distress are insufficient to state a cause of action to recover damages for breach of fiduciary duty (see DeRaffele v. 210–220–230 Owners Corp., 33 AD3d 752, 753).

The complaint failed to state a cause of action to recover damages for intentional infliction of emotional distress against Goldfarb, Gerzog, G & G, or LOSMG, because, even accepting the allegations as true, they are insufficient as a matter of law as the allegations failed to allege conduct that is extreme or outrageous (see Bridgers v. Wagner, 80 AD3d 528, 528;  Murray v. 600 E. 21st St., LLC, 55 AD3d 805, 805;  Muzio v. Brown, 302 A.D.2d 505, 506).

Nevertheless, we agree with the plaintiff that the Supreme Court erred in directing dismissal of the nineteenth cause of action for a judgment, in effect, declaring that Gerzog, G & G, and LOSMG may not recover legal fees for the work performed in the underlying medical malpractice action.  The plaintiff alleged that Gerzog improperly withdrew his representation of the plaintiff (see 22 NYCRR 1200.0, rule 8.4[d] ) and that the plaintiff terminated Goldfarb's representation for cause.  On this record, Gerzog failed to demonstrate his entitlement to dismissal of the nineteenth cause of action as a matter of law.  Further, “[i]n general, a hearing is required to determine whether a client has cause for discharging an attorney” (Doviak v Finkelstein & Partners, LLP, 90 AD3d 696, 699).

This Court declines to sanction the plaintiff for filing a frivolous appeal in connection with the extension order.  Although “a party's pro se status should not render the party immune,” in this instance the Court is mindful to afford leniency to the pro se plaintiff (NewRez LLC v. Morton, 242 AD3d 416, 417).

The plaintiff's remaining contentions are without merit.

CONNOLLY, J.P., FORD, VOUTSINAS and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court