DECISION AND ORDER Motion sequence numbers 003 and 004 are consolidated for disposition.Plaintiffs Moreton Binn (Binn) and Marisol F, LLC bring this action against defendants John Golieb (Golieb), Muchnick, Golieb & Golieb, P.C. (collectively, the Golieb Defendants), DLA Piper LLP (US) (DLA) and Sidney Burke, incorrectly sued herein as “Sydney Burke,” (collectively, DLA Defendants), alleging that defendants committed legal malpractice and breached their fiduciary duties to plaintiffs in connection with several corporate transactions. The seven-count first amended complaint (FAC) asserts the following cause of action: (1) legal malpractice against the Golieb Defendants arising out of three separate transactions (first through third causes of action); (2) breach of fiduciary duty against the Golieb Defendants (fourth cause of action); (3) legal malpractice against the DLA Defendants (fifth cause of action); (4) breach of fiduciary duty against the DLA Defendants (sixth cause of action); and (5) aiding and abetting breach of fiduciary duty against the DLA Defendants (seventh cause of action).In motion sequence number 003, the DLA Defendants now move, pursuant to CPLR 3211 (a) (1) and (7), to dismiss the FAC. In motion sequence number 004, the Golieb Defendants likewise move to dismiss the FAC, pursuant to CPLR 3211 (a) (1), (5) and (7).I. BackgroundUnless indicated otherwise, the following facts are taken from the FAC and are presumed to be true for purposes of the motions.Nonparty Marisol Binn, the sole member of plaintiff Marisol F, LLC, and her husband Moreton Binn (collectively, Binns) founded an airport wellness spa business, which they operated under the brand name “XpresSpa.” In 2000, the Golieb Defendants registered the entity “Binn and Partners, LLC” (B&P), which plaintiffs used to operate the XpresSpa business. Over the next 14 years, as the business expanded into an international chain of airport spas, additional investors joined as B&P members. The Golieb Defendants continued to provide legal services in connection with all aspects of the XpresSpa business, representing both B&P as well as plaintiffs in their individual capacities.In 2011, B&P sought an infusion of additional capital from Mistral Equity Partners and its related affiliates (collectively, Mistral). The proposed transaction required B&P to transfer substantially all of its assets to a newly-created entity, XpresSpa Holdings, LLC (XpresSpa Holdings or Company), into which Mistral would then make its investment. This led to a lawsuit by one of the B&P members, entitled JPS Partners v. Binn et al. (index No. 650430/2012, Supreme Court, New York County). After two years of litigation, the parties entered into a global settlement in June 2014 (JPS Settlement).To fund the JPS Settlement, Mistral proposed the following transaction (Mistral Transaction): it would invest $1,281,068, while B&P members would invest $918,932; XpresSpa Holdings would then issue 4,400,000 common shares, in consideration for the $2.2 million in investments, with Mistral obtaining majority ownership of XpresSpa Holdings. In an email dated June 9, 2014, describing the proposed transaction, Binn declared that he and his wife would not be “the Deep Pockets to this relationship” and explained that once B&P was consolidated into XpresSpa Holdings, “Mistral [would] have 3 out of 5 votes on the Board” and “[would] hold the Majority of the Shares” (DiGennaro affirmation, exhibit C at 1). In a July 18, 2014 memorandum, Binn provided the B&P members with additional information regarding the Mistral Transaction, including that, “[s]ince the JPS Amount [was] being used to fund a B&P obligation [i.e. the JPS Settlement],” it would be “treated as a distribution from XSPA to the B&P members” and that “Mistral [would] control the Board” (DiGennaro affirmation, exhibit A to exhibit D,
4 [e], [f]).Allegedly, relying on the advice of the Golieb Defendants, plaintiffs executed the Third Amended and Restated Limited Liability Company Operating Agreement of XpresSpa Holdings, LLC, dated July 28, 2014 (Third A&R Operating Agreement). However, according to plaintiffs, “Golieb advised [them] to execute signature pages separate from the body of the JPS Settlement agreement. The final documentation of the Mistral Transaction was not provided to Plaintiffs, or the other minority shareholders, until 2015″ (FAC 54).The Third A&R Operating Agreement provides, in pertinent part, that the five-member board of directors shall consist of two non-Mistral directors (B&P Directors), initially the Binns, and three directors representing Mistral (Mistral Directors), initially Beth Bronner, Andrew R. Heyer and William P. Phoenix (see DiGennaro affirmation, exhibit F, §3.02 [a] [i], [ii]). With respect to the recapitalization portion of the transaction, the Third A&R Operating Agreement provides, in pertinent part, that:“Section 2.09 Recapitalization Transactions. In connection with the amendment and restatement of the Second A&R Agreement, the following transactions have occurred, each of which are hereby consented to by the Members:* * *“(d) JPS Settlement.…the Company [i.e., XpresSpa Holdings] shall use the proceeds from the Common Unit Issuance to fund (i) the payments required pursuant to that certain Settlement Agreement and General Release (the ‘JPS Settlement Agreement’), dated as of July 24, 2014, related to the JPS Litigation (the ‘JPS Settlement Payment’)…. For all purposes of this Agreement, the JPS Settlement Payment shall be considered an advance to the B&P Members of Distributions payable under Section 5.02….”* * *“Section 5.02 Allocation of Distributions….* * *“(a) Common and Profits Interest Participation:…* * *“As provided in Section 2.09(d), the JPS Settlement Payment shall be treated as an advance of Distributions payable under this Section 5.02 to the B&P Members for all purposes of this Agreement.”(id., §§2.09 [d], 5.02 [a]). The Third A&R Operating Agreement also contains a release, providing, in pertinent part, that:“as of the Effective Date [July 28, 2014], each B&P Member…irrevocably and unconditionally fully and forever waive, release and discharge B&P, the Company…and each of the respective past or present directors, officers, managers, employees, direct and indirect equityholders, agents, advisors, and representatives of any of the foregoing (in each case, in their capacities as such and individually)…from any and all…. claims, demands, proceedings, actions, causes of action, orders, obligations, judgments, fees, damages, contracts, agreements, debts, liabilities, and Losses of any kind whatsoever, whether known or unknown, suspected or unsuspected, both at law and in equity (collectively, ‘Claims’)…arising on or prior to the Effective Date or on account of or arising out of any matter, cause or event occurring on or prior to the Effective Date (including the transactions described in Section 2.09) that in any way relate to B&P, the Company, or any investment in B&P or the Company….”(id., §2.10 [a]).On or about January 8, 2015, DLA, which represented Mistral, circulated a Membership Interest Purchase Agreement (MIPA), intended to raise additional capital for XpresSpa Holdings. At the time, Marisol F, LLC held an anti-dilution right that protected it against an issuance of additional membership interests and “the Golieb Defendants had advised Marisol F, LLC not to invest additional funds in the company (i.e. not to take a greater equity position)….” (FAC 65). However, plaintiffs allege that the Golieb Defendants “did not advise Plaintiffs to refuse to participate in the January 2015 capital raise, which [Golieb] described as a loan to the company” (id.). Allegedly relying on Golieb’s representations that the transaction would be documented as debt rather than equity, Marisol F, LLC agreed to lend $262,500 and Binn agreed to lend $630,500 to XpresSpa Holdings. In return for their investment, plaintiffs received a “P-3 interest,” which they allegedly understood to represent debt (id. 67).Plaintiffs executed the MIPA, dated January 14, 2015. In pertinent part, the MIPA states that XpresSpa Holdings is offering a total of 5,000,000 Series A Preferred Units and that “[a]ll of the issued and outstanding equity interests in the Company, including the Purchased Units issued pursuant to this Agreement upon issuance and payment therefor, have been duly authorized and validly issued.. ..” (DiGennaro affirmation, exhibit K, §3.2 [b]). Contemporaneously with the MIPA, plaintiffs executed “Amendment No. 1″ to the Third A&R Operating Agreement (Amendment No. 1), which defines “Series A Preferred Units” as “a Unit representing a fractional part of the ownership of the Company and having the rights and obligations specified with respect to Series A Preferred Units in this Agreement” (id., exhibit L, §1 [b]).In January 2016, Marisol Binn resigned as a director of XpressSpa Holdings. Her B&P Director seat was ultimately filled by Ned Hentz (Hentz).In February 2016, Bruce Bernstein, a board member of XpresSpa Holdings and the controlling principal of Rockmore Investment Master Fund Ltd., a major creditor of XpresSpa Holdings, was appointed to the board of Form Holdings Corp. (FH), a publicly traded corporation. In March 2016, plaintiffs first learned of a proposed merger between XpresSpa Holdings and FH. According to plaintiffs, the merger was presented as the only alternative to certain bankruptcy. In an email dated June 22, 2016, Binn described XpresSpa Holding’s financial position as follows: “XpresSpa can’t go on this way, in a weak financial position and they can’t lose the Public Company’s interest. IT IS THE END OF JUNE OR oblivion !!!” (id., exhibit O at 2).On August 3, 2016, XpresSpa Holdings held a members meeting. In an email to Golieb about that meeting, Binn stated that members received “a general up-date on Form Holding (FH),” that “[i]t appears that the deal is VERY ADVANCED” and that, “[a]ccording to Bill Phoenix, volumes and volumes of books and reports, with hundreds of pages, have already been prepared, most likely by FH” (Felicello affirmation, exhibit 3 at 2). According to plaintiffs, they “played no role in the negotiation of the merger and acquisition by FH” and “all the documents relating to the acquisition were prepared by DLA and counsel for FH” (FAC 75).In an email to Golieb, among others, dated August 6, 2016, Binn stated, in pertinent part, that:“XpresSpa Holdings, LLC and Subsidiaries, un-audited Consolidated Statement Of Operations for the First 6 Months ending June 30th, 2016 shows a LOSS FROM OPERATIONS OF -$3,203,284…down 15.65 percent . YES…even though not the best solution, I think being acquired by FH is, at this point, the only decision we have. Must break away from Mistral’s NEGATIVE chokehold”(DiGennaro affirmation, exhibit P at 2). On the same day, Golieb emailed Binn with suggested language to be sent to Mistral, expressing Binn’s consent to the merger under protest, based on Binn having been “frozen…out of any effective role in the management of the Company and the operation and direction of the Board” and having been “provid[ed] limited, curated information” regarding the proposed merger, on a “do or die” basis (DiGennaro affirmation, exhibit Q at 2). Binn responded that he wished to make the language stronger to reflect that Andrew Heyer had previously told him that “there was NO OTHER ALTERNATIVE” and to make clear that Binn “had NOTHING to do with the day-to-day operations of XpresSpa, had no ability to make any decisions that would effect [sic] the Company one way or the other, [as he] was NOT an officer, was never entitled to see any information or figures until after the fact, etc.” (id. at 1). Ultimately, Binn substantially adopted the language that Golieb had suggested and, in an email dated August 6, 2016, Binn consented to the merger “with grave reservations, under protest as to how this transaction has been handled and presented, and in all respects relying on [Andrew Heyer's] representations that the only choices at this point are this deal or the Company goes under” (id., exhibit R, XpresSpa Holdings Board Minutes dated 8/7/16, exhibit A).On August 7, 2016, DLA circulated draft merger documents, including the merger agreement (Merger Agreement), which Binn immediately forwarded to Golieb. Later that day, at a meeting of the board of directors for XpresSpa Holdings, the board unanimously approved the merger. According to the minutes, “Mr. Binn and Mr. Hentz voted in favor but noted that they did so with reservations that Mr. Binn had previously communicated in an e-mail to certain Directors and Members of the Company” (id., exhibit R at 2).As relevant to the instant action, the “Fourth Amended and Restated Limited Liability Company Operating Agreement of XpresSpa Holdings, LLC” (Fourth A & R Operating Agreement), dated April 22,2015, provides that “the Board may not act with respect to Significant Matters [such as an agreement effecting a sale of the Company] without the affirmative consent of at least one of the B&P Directors and at least one of the Mistral Directors” (DiGennaro affirmation, exhibit J, §3.03 [a]). In other pertinent part, the Fourth A&R Operating Agreement provides as follows:“Section 13.13 Legal Representation.“(a) The Mistral Vehicles have retained DLA Piper LLP (US) (“DLA”) as counsel in connection with this Agreement and the consummation of the transactions contemplated hereby, and expect to retain (and may recommend that the Board cause the Company to retain) DLA in connection with the management and operations of the Company. Each Member acknowledges and agrees that (i) DLA is not representing and will not represent any Member (other than the Mistral Vehicles) in connection with any of the transactions described in the preceding sentence or any dispute which may arise between the Company or any Mistral Vehicle, on the one hand, and any other Member on the other hand, and (ii) such Member has or will, if it wishes legal counsel in connection with any of the matters or disputes described in the preceding clause (i), retain its own independent legal counsel. Notwithstanding the foregoing, each Member hereby agrees that DLA may represent the Company and/or any Mistral Vehicle in connection with any and all legal matters arising from and after the A&R Agreement Date…and hereby waives any present or future conflict of interest with DLA regarding any such matters.”(id., §13.13 [a]).Pursuant to the Merger Agreement, dated August 8, 2016, all “Unitholders,” including the B&P members of XpresSpa Holdings, would receive, “common stock in FH, series D convertible preferred shares of FH, and five-year warrants to purchase common stock of FH” (FAC 80). However, a portion of the preferred stock would be held in escrow for a period of 18 months. During that period, FH would be able to make claims against the preferred stock held in escrow, including for attorney’s fees. In addition, a Mistral entity, Mistral XH Representative, LLC (Mistral XH), would act on behalf of the Unitholders. Specifically, the Merger Agreement provides, in pertinent part, that:“8.1 Unitholders’ Representative. By executing this Agreement, a Joinder Agreement or by accepting any consideration payable hereunder, each Company Unitholder shall have irrevocably authorized, appointed and empowered Mistral XH Representative, LLC (together with any subsequent or successor representative, the “Unitholders’ Representative”) to be the exclusive proxy, representative, agent and attorney-in-fact of each of the Company Unitholders, with full power of substitution”(Burke affirmation, exhibit C, §8.1). In addition, the Merger Agreement contains the following provision with respect to Mistral XH:“8.3 No Liability.“(a) Each of the Parties acknowledges and agrees that the Unitholders’ Representative is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby…* * *“(c)…In connection with this Agreement and the ancillary documents, and in exercising or failing to exercise all or any of the powers conferred upon the Unitholders’ Representative hereunder or thereunder, (i) the Unitholders’ Representative (and its Affiliates) shall incur no responsibility whatsoever to any Company Unitholder by reason of any error in judgment or other act or omission performed or omitted hereunder….(id., exhibit C, §§8.3 [a], [c]).On or about August 8, 2016, “on the same date that FH would be making an initial investment in XpresSpa,” Mistral made an investment of approximately $1.7 million into FH, thus enabling Mistral “to take additional control away from the unitholders of XpresSpa such as Plaintiffs” (FAC 84).According to plaintiffs, Golieb continued to provide them with advice concerning the merger after Binn cast his vote in favor of the transaction. “Specifically, Golieb exchanged emails with Plaintiffs’ accountant, Jay Shulman, and Plaintiffs relating to the proper tax treatment for the transaction at least on or about August 12, 2016; August 16, 2016; August 17, 2016; August 18, 2016; August 23, 2016; and August 24, 2016″ (FAC 87).In a September 24, 2016 email, Binn expressed concern over the volume and complexity of the documents provided to the B&P members in connection with the merger, stating that it was “[t]oo dangerous NOT to have a Legal [sic] and Accountant go over these 475 pages” and that he was considering Kramer Levin Naftalis & Frankel LLP (Kramer Levin) as “[a] fresh pair of eyes” (DiGennaro affirmation, exhibit T at 2). To this, Golieb replied that he was “[a]lways happy to provide any insight that might be helpful,” but that “[he would] leave this to [Kramer Levin] to handle on [Binn's] behalf’ (id. at 1).On Friday, October 28, 2016, XpresSpa Holdings’ in-house counsel circulated documents for the B&P members to execute in connection with the merger. On Monday, October 31, 2016, Golieb emailed the Binns, stating that he “ha[d] taken a (less than in depth) look at these documents,” that they “[were] very significant and include[d] substantial indemnification obligations on the part of all XSPA Members,” and advising that “[c]ounsel should be retained on behalf of all the members to review these in depth and to see how exposure of members might be minimized” (id., exhibit U at 1).In a November 1, 2016 email to B&P members, Binn wrote, in pertinent part, that Golieb had “suggested that the Shareholder’s ‘As A Group’ retain outside council [sic] to read ALL the documents, and answer all [their] questions” (id., exhibit v. at 5). When one of the members responded that it might be better and cheaper, to have Golieb review the documents, because of his familiarity with the transaction, Binn responded that Golieb “said ‘this would be better handled by a Law Firm with more staff and more Diversified Internal Resources,’” but “[i]f needed, [Golieb] will assist” (id. at 3). In another email from Golieb to Binn, Golieb explained that he did not have the time to do this work and recommended Kramer Levin, stating that he would be “available to speak with them and guide them through the concerns and issues [he saw] so far” (id. at 1). He also stated that counsel should review the merger document, “not with a view to renegotiating the terms of the merger which are already locked in,” but with a focus on “risks to the members and what, if anything, can be done to mitigate the risks” (id.).In an email to B&P members dated November 21, 2016, Binn wrote, in pertinent part, that:“A group of us have been working hard, especially over the past few weeks, to tighten up the Form Holdings / XpresSpa Holdings transaction, trying to make sure the interests of ALL the original BINN AND PARTNERS investors are protected as much as possible. We now have a deal that Marisol and I support. ‘We signed on’, and if not already, we recommend you ALL join in as well.* * *“To review the Transaction Documentation for the Minority Group, I hired the distinguished International Law Firm of Kramer Levin Naftalis & Frankel, 1177 Avenue of the Americas, in New York. The Minority Shareholders are being represented by Michael Mayerfeld, a Partner. I am pleased to add that the Law Firm’s bill, for this initial representation, is being paid by…XpresSpa Holdings.“Please…on all the signature pages write…’THESE SIGNATURE PAGES ARE BEING SENT SUBJECT TO THE AGREEMENTS BEING NEGOTIATED ON MY BEHALF BY KRAMER LEVIN NAFTALIS & FRANKEL’”(Burke affirmation, exhibit E at 2).Plaintiffs executed the Joinder Agreement, dated October 28, 2016, thereby “becom[ing] a party to the Merger Agreement as a Company Unitholder…[and] agreeing]…[to] abide by all of the terms and conditions of the Merger Agreement, the Escrow Agreement, and related documents…(collectively, the ‘Transaction Documents’)” (DiGennaro affirmation, exhibit W, §1). In executing the Joinder Agreement, each “Joinder Party…agree[d] to withdraw all written objections to the Merger and/or demands for appraisal, valuation or similar procedures, if any, with respect to the Company Units owned by the Joinder Party” (id. §2 [b]). In other pertinent part, the Joinder Agreement states that:“The provisions of Section 13.13(a) (Legal Representation) of the [Fourth A&R Operating Agreement] apply mutatis mutandis with respect to this Joinder and the other Transaction Documents. The Joinder Party acknowledges that DLA Piper LLP (US) is not representing and will not represent any Member (as defined in the [Fourth A&R Operating Agreement]) other than the Mistral Vehicles (as defined in the [Fourth A&R Operating Agreement]) in connection with this Joinder and the other Transaction Documents or any dispute that may arise between the Company or any Mistral Vehicle, on the one hand, and any other Member on the other hand. The Joinder Party has obtained the advice of their own legal counsel with respect to this Joinder, the other Transaction Documents, and the transactions contemplated hereby and thereby”(id., §13). In executing the Joinder agreement, plaintiffs added the following handwritten statement beneath their signatures: “These signature pages are being sent subject to the agreements being negotiated on my behalf by Kramer Levin Naftalis & Frankel LLP” (id. at 12, 14).According to plaintiffs, because the managing members of XpresSpa Holdings (i.e. Mistral) would only agree to reimburse the B&P members $25,000 for legal fees, “Plaintiffs and the other minority [B&P] members were not able to find counsel to thoroughly represent their interest. Instead, they were able to retain counsel only willing to agree to a narrow scope of services effectively limited to reviewing the documents as they existed at that time” (FAC 91).After commencing the instant action, plaintiffs also commenced an action in the United States District Court for the Southern District of New York, alleging that XpresSpa Holdings’ board members and FH executives conspired to mislead them to ensure they would vote in favor of the FH merger.II. Analysis“[O]n a motion to dismiss the complaint for failure to state a cause of action, the complaint must be construed in the light most favorable to the plaintiff and all factual allegations must be accepted as true” (Allianz Underwriters Ins. Co. v. Landmark Ins. Co., 13 AD3d 172,174 [1st Dept 2004]). “However, factual allegations that do not state a viable cause of action, that consist of bare legal conclusions, or that are inherently incredible or clearly contradicted by documentary evidence are not entitled to such consideration” (Skillgames, LLC v. Brody, 1 AD3d 247, 250 [1st Dept 2003] [internal citation omitted]). Where the defendant seeks to dismiss the complaint based upon documentary evidence, “the documentary evidence [must] utterly refute[] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002] [internal citation omitted]). “[T]o constitute documentary evidence, the papers must be ‘essentially undeniable’ and support the motion on its own.…In our electronic age, emails can qualify as documentary evidence if they meet the ‘essentially undeniable’ test” (Amsterdam Hospitality Group, LLC v. Marshall-Alan Assoc., Inc., 120 AD3d 431,432, 433 [1st Dept 2014] [internal citations omitted]).A. The Golieb Defendants’ Motion to Dismiss (Motion Sequence Number 004)The Golieb Defendants contend that plaintiffs’ first legal malpractice claim, based on the 2014 Mistral Transaction, is refuted by documentary evidence. In addition, the Golieb Defendants contend that the claim is barred by the release contained in the Third A&R Operating Agreement and the statute of limitations. With respect to the second malpractice claim, based on the MIPA, the Golieb Defendants again point to documentary evidence establishing that plaintiffs understood the nature of the transaction. As to the third malpractice claim, based on the FH merger, the Golieb defendants contend that the claim must be dismissed because of plaintiffs’ inability to demonstrate proximate causation. They also contend that, by executing the Joinder Agreement, plaintiffs ratified the transaction. Lastly, the Golieb Defendants contend that the breach of fiduciary duty claim must be dismissed as duplicative.Plaintiffs counter that the Golieb Defendants merely raise issues of fact about what plaintiffs knew. In addition, plaintiffs argue that any release is unenforceable, because the Golieb Defendants procured the release while under an irreconcilable conflict of interest and in violation of rule 1.8 (h) of the Rules of Professional Conduct. Plaintiffs also contend that the statute of limitations does not bar the first malpractice claim, because the Mistral Transaction was not finalized until 2015 and, in any event, the statute of limitations was tolled under the continuous representation doctrine. Lastly, plaintiffs argue that their breach of fiduciary duty is distinct from their malpractice claims.A plaintiff alleging legal malpractice must allege “that counsel failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that ‘but for’ the attorney’s negligence the plaintiff would have prevailed in the matter or would have avoided damages” (Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 10 [1st Dept 2008] [internal quotation marks and citations omitted]). While “[p]laintiff is not obliged to show, at this stage of the pleadings, that [he] actually sustained damages,” he must plead “allegations from which damages attributable to [defendant's conduct] might be reasonably inferred” (InKine Pharm. Co. v. Coleman, 305 AD2d 151,152 [1st Dept 2003] [internal quotation marks and citation omitted]). “Moreover, [plaintiff] must plead specific factual allegations establishing that but for counsel’s deficient representation, there would have been a more favorable outcome to the underlying matter” (Dweck Law Firm v. Mann, 283 AD2d 292,293 [1st Dept 2001]). “Even if counsel improperly advises the client, the advice is not the proximate cause of the harm if the client cannot demonstrate its own likelihood of success absent such advice” (Pellegrino v. File, 291 AD2d 60, 63 [1st Dept 2002]).The statute of limitations for a legal malpractice claim is three years (CPLR 214 [6]). “An action to recover damages for legal malpractice accrues when the malpractice is committed….not when the client discover[s] it” (Shumsky v. Eisenstein, 96 NY2d 164, 166 [2001] [internal quotation marks and citation omitted]). The continuous representation doctrine will toll the limitations period on a malpractice claim, but “only where the continuing representation pertains specifically to the matter in which the attorney committed the alleged malpractice” (id. at 168; see also McCoy v. Feinman, 99 NY2d 295, 306 [2002] ["[t]he continuous representation doctrine tolls the statute of limitations only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim”]).To establish a breach of fiduciary duty claim, a plaintiff must allege: (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages (Burry v. Madison Park Owner LLC, 84 AD3d 699, 699-700 [1st Dept 2011]). Where the breach of fiduciary duty claim “ar[ises] from the same facts as the legal malpractice claim and allege[s] similar damages,” it will be dismissed as duplicative (InKine Pharm. Co., 305 AD2d at 152).i. Legal Malpractice against the Golieb Defendants in Connection with Mistral Transaction (First Cause of Action)The first cause of action for malpractice must be dismissed. First, the documentary evidence refutes plaintiffs’ allegations that the Golieb Defendants advised them to enter the Mistral Transaction without informing them that: (1) “[plaintiffs] would be giving up their majority ownership interest and majority board membership” (FAC 48); (2) the $2.2 million would be “defined by XpresSpa as funding an obligation of [B&P] and [would be] treated as a distribution from XpresSpa to the members of [B&P]” (id. 49); and (3) plaintiffs could avoid the Mistral Transaction by using their independent wealth to fund the JPS Settlement and, thereby, retain control of the XpresSpa business (see id.,
