3118. PETER ALPHAS, plf-ap, v. SCOTT SMITH def-res — Spinak Law Office, White Plains (Robert Spinak of counsel), for ap — Lewis Brisbois Bisgaard & Smith LLP, New York (Philip J. Furia of counsel), for res — Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered January 8, 2016, which granted defendants’ motion to dismiss the second amended complaint pursuant to CPLR 3211(a)(1) and (7), unanimously modified, on the law, to deny the motion as to the first cause of action insofar as it relates to plaintiff’s individual damages, and otherwise affirmed, without costs.
In opposition to defendants’ motion, plaintiff’s counsel submitted an affirmation citing Good Old Days Tavern v. Zwirn (259 AD2d 300 [1st Dept 1999]) and averring that plaintiff was the president and sole shareholder of the Alphas Company of New York, Inc. (Alphas NY) and that running that corporation was the business from which plaintiff derived his livelihood. Thus, contrary to defendants’ contention, plaintiff is not claiming for the first time on appeal to have derived his livelihood from Alphas NY. In light of the similarity between this case and Good Old Days, and in light of the procedural posture of this case (a CPLR 3211 motion to dismiss), plaintiff should be allowed to assert an individual malpractice claim, even though defendants represented only Alphas NY in the federal action in which they allegedly committed malpractice. However, plaintiff’s damages are limited to those he suffered individually (e.g., the loss of $1.4 million in unsecured loans that he made to Alphas NY, the losses he incurred as a result of guaranteeing the company’s debt, lost income, loss of his Perishable Agricultural Commodities Act license, a lower personal credit score, legal fees for his personal liabilities, and the cancellation of an agreement for 30 percent of his interest in Alphas NY), as opposed to damages suffered by Alphas NY (e.g., the $1.2 million judgment entered against it in the federal action, its bankruptcy, the liquidation of its cooperative shares in the Hunts Point Terminal Produce Cooperative Association, and the legal fees incurred by it) (see generally Griffith v. Medical Quadrangle, 5 AD3d 151, 152 [1st Dept 2004]).
