The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 were read on this motion to/for Dismiss.DECISION AND ORDER Upon the foregoing documents and for the reasons set forth on the record (6/10/2019), Steven Wagner, Bonnie Berkow and the Law Offices of Wagner Berkow LLP’s (collectively the Defendants) motion to dismiss is granted.This action arises from certain work performed pursuant to a certain Alteration Agreement (the Alteration Agreement), dated January 2004, by and between Sandra Nunnerly and the Board of Directors for 36 East 69th Corp. (the Board). Notably, Section 3(d) of the Alteration Agreement provides:I undertake to indemnify you, your Managing Agent and tenants or occupants of the building for any damages suffered to person or property as a result of the work performed hereunder, whether or not caused by negligence, and to reimburse you and your Managing Agent for any expenses (including, without limitation, attorneys’ fees and disbursements) incurred as a result of such work. (NYSCEF Doc. No. 2).When Ms. Nunnerley performed the work contemplated by the Alteration Agreement, damage was incurred by Virginia Witbeck. Ms. Witbeck brought a lawsuit (the Underlying Lawsuit) captioned Virginia Witbeck v. Sandra Nunnerley et al., Index No. 115086/2005 as against Ms. Nunnerley, 36 East 39th Corp (the Co-op), Alexander Wolfe and Company, Inc. and TDC Construction Inc (id., 17). The Underlying Lawsuit was settled for $15,000 and the attorneys’ fees incurred were allegedly in excess of $150,000 (id., 25). Significantly, at no time has the Co-op made a demand that Ms. Nunnerly reimburse the Board for its $150,000 legal bill. Nor has Ms. Jarmuth requested that the Board make any such demand. Instead, Ms. Jarmuth commenced this action individually and derivatively on behalf of the Co-op for legal malpractice, breach of contract and tort for breach of ethics concerning the Defendants’ representation of the Co-op in the Underlying Lawsuit.Dismissal under CPLR §3211 requires that a court take “the allegations asserted within a plaintiff’s complaint as true and accord plaintiff the benefit of every possible inference, determining only whether the facts as alleged fit within any cognizable legal theory” (Samiento v. World Yacht Inc., 10 NY3d 70, 79 [2008]). Allegations that consist of bare legal conclusions, or factual claims inherently incredible or flatly contradicted by documentary evidence are not entitled to the same consideration (Caniglia v. Chicago Tribune-New York News Syndicate, 204 AD2d 233, 233-234 [1st Dept 1994]).A. First Cause of Action (Legal Malpractice)Ms. Jarmuth’s first cause of action is for legal malpractice by the Defendants in failing to adequately defend the Co-op and pursue the counterclaim against Ms. Nunnerley (NYSCEF Doc. No. 1,
34-52). The Defendants argue that the claim for legal malpractice should be dismissed, in part, because there was no attorney client relationship between Ms. Jarmuth and the Defendants. Ms. Jarmuth asserts that she has standing to bring her claim. A claim for legal malpractice requires three elements: (1) negligence of the attorney, (2) that the negligence was the proximate cause of the loss sustained and (3) actual damages (Leder v. Spiegel, 31 AD3d 266, 267 [1st Dept 2006]).To the extent the claim is asserted by Ms. Jarmuth individually against the Defendants, Ms. Jarmuth has no standing as an unrelated third party (see Green v. Fischbein, Olivieri, Rozenholc & Badillo, 135 AD2d 415, 418 [1st Dept 1987] [holding that "[u]nder New York law an attorney generally cannot be held liable to third parties for actions taken in furtherance of his role as counsel unless it is shown that he ‘did something either tortious in character or beyond the scope of his honorable employment.’”]). To the extent that the claim against the Defendants is made derivatively on behalf of the Co-op, Ms. Jarmuth has not complied with BCL §626(c) which requires that shareholder derivative actions “set forth with particularity the efforts of the plaintiff to secure the initiation of such action by the board or the reasons for not making such effort.” While Ms. Jarmuth has pled that she serviced a notice on members of the Board regarding “legal malpractice by the Wagner Berkow attorneys with regard to advice given and the action taken as it pertained to a certain litigation brought by Virginia Witbeck against Sandra Nunnerley 36 East 69th Owners Corp. and TD Construction Inc.” (NYSCEF Doc. No 1, 3), there is no evidence that the Board made a demand for reimbursement from Ms. Nunnerley or that Ms. Jarmuth demanded that the Board should do so, accordingly, Ms. Jarmuth’s first cause of action for legal malpractice is dismissed without prejudice. For the avoidance of doubt, should Ms. Jarmuth demand that the Board seek reimbursement from Ms. Nunnerley, and should the Board refuse to seek reimbursement from Ms. Nunnerley, Ms. Jarmuth is not precluded from seeking alternative derivative relief.B. Second Cause of Action (Breach of Contract)Ms. Jarmuth’s second cause of action is for breach of contract regarding the contract for legal services between the Co-op and the Defendants (NYSCEF Doc. No. 1,
