Negligent Infliction of Emotional Distress and Breach of Fiduciary Duty Claims Dismissed

The plaintiff, a property seller, commenced this action on the grounds that the defendant, his attorney, failed to provide proper legal representation with respect to his sale of real property. The plaintiff asserted three causes of action against his attorney: legal malpractice, negligent infliction of emotional distress and breach of fiduciary duties.

The defendant’s motion to dismiss advanced the following arguments: (1) the negligent infliction of emotional distress claim should be dismissed because there was no allegation that the defendant unreasonably endangered the plaintiff’s physical safety; (2) the breach of fiduciary claim was duplicative of the plaintiff' s legal malpractice cause of action; (3) the plaintiff had not shown that the defendant acted with deceitful intent, which is a required element of a breach of fiduciary duty claim; and (4 ) the legal malpractice claim must be dismissed as the plaintiff had not demonstrated that, "but for" the defendant's actions /inactions , the alleged damage would not have occurred.

The plaintiff, in opposition, argued that he could claim negligent infliction of emotional distress even in the absence of physical harm. He also asserted that the elements for breach of fiduciary duty and legal malpractice were duly set forth in his complaint and that the claims were not duplicative.

The court held that in the instant case, the complaint articulated neither that the plaintiff's physical safety was endangered nor that he feared for his own safety. Moreover, the complaint did not attribute conduct to the defendant that was "so extreme and outrageous as to be considered atrocious and utterly intolerable." (See Moore v. Melsky, 14 AD3d 75 [3d Dept 2005]). As a result, the court dismissed the plaintiff's negligent infliction of emotional distress claim.

Finally, the court found that the plaintiff's breach of fiduciary claim was premised on the same alleged facts as his legal malpractice claim, thus, it was duplicative and warranted dismissal.
 

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