COBBLECREEKCONSULTING, INC. plf-ap, v. SICHENZIA ROSS FRIEDMAN FERENCE LLP, def-res

10832. COBBLECREEKCONSULTING, INC. plf-ap, v. SICHENZIA ROSS FRIEDMAN FERENCE LLP, def-res — Mintz & Fraade, P.C., New York (Edward C. Kramer of counsel), for ap — Lewis Brisbois Bisgaard & Smith, LLP, New York (Cristina R. Yannucci of counsel), for res — Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered June 26, 2012, which granted defendant's motion to dismiss the complaint alleging legal malpractice and breach of fiduciary duty, unanimously affirmed, without costs.

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10832. COBBLECREEKCONSULTING, INC. plf-ap, v. SICHENZIA ROSS FRIEDMAN FERENCE LLP, def-res — Mintz & Fraade, P.C., New York (Edward C. Kramer of counsel), for ap — Lewis Brisbois Bisgaard & Smith, LLP, New York (Cristina R. Yannucci of counsel), for res — Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered June 26, 2012, which granted defendant’s motion to dismiss the complaint alleging legal malpractice and breach of fiduciary duty, unanimously affirmed, without costs.

The motion court properly dismissed the claim of legal malpractice, as plaintiffs failed to allege how any negligence was the proximate cause of their damages (see O’Callaghan v. Brunelle, 84 AD3d 581, 582 [1st Dept 2011], lv denied 18 NY3d 804 [2012]; McLoughlin v. Sullivan Papain Block McGrath & Cannavo, P.C., 18 AD3d 245, 246 [1st Dept 2005], lv denied 5 NY3d 709 [2005]). The motion court considered plaintiffs’ allegations, quoted in its decision, that defendant acted in a manner contrary to its discussions with plaintiffs by assisting the subject corporation in eliminating the Preferred A shares. As the motion court noted, plaintiffs alleged only that the parties had discussed, and defendant failed to include, a provision in the Certificate of Designation that prevented changes in the common stock structure from affecting the conversion rate of plaintiffs’ Preferred A Stock. Plaintiffs did not challenge the inclusion of language in the Certificate of Designation that allows changes in the value or voting rights of Preferred A shares by a majority vote of Preferred A shareholders. The complaint reveals that a vote held pursuant to this latter provision is what altered the conversion ratio, allegedly rendering plaintiffs’ stock virtually worthless. Thus, inclusion of the anti-dilution provision plaintiffs cite would not have altered the result. Accordingly, plaintiffs failed to set forth facts showing that, but for defendant’s conduct, plaintiffs would not have incurred any damages.

COBBLECREEKCONSULTING, INC. plf-ap, v. SICHENZIA ROSS FRIEDMAN FERENCE LLP, def-res

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