Houraney v. Burton & Associates, P.C. et al

Filing 111

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION: The Court adopts the 105 Report and Recommendation as the opinion of the Court. The defendants' 97 motion to dismiss is granted. Because the plaintiff has failed to cure the de ficiencies expressly identified by the Court, leave to replead is denied as futile. The Clerk of Court is directed to enter judgment and close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. SO ORDERED by Chief Judge Carol Bagley Amon, on 2/27/2012. C/mailed. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

FILED

IN CLERK'S OFFICE
U.S. DlSTRItT COURT E.D.N.Y.

* FEB '2 7 2012 *

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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BROOKLYN OFFICE

MARK HOURANEY

NOT FOR PUBLICAnON
MEMORANDUM & ORDER
08-cv-2688

Plaintiff,
-against<,

BURTON & ASSOCIATES, P.C. and BERNARD
BURTON,
Defendants.

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AMON, Chief United States District Judge:
Pro se plaintiff Mark Houraney objects to Magistrate Judge Bloom's report and
recommendation ("R&R"), issued November 21,2011, recommending that this Court grant the
defendants' motion to dismiss the plaintiffs amended complaint. For the following reasons, the
Court adopts the R&R as the opinion of the Court. Accordingly, the defendants' motion to
dismiss is granted.
BACKGROUND
The Court assumes familiarity with the facts and background of this case, as set forth in
the R&R. (R&R at pp. 2-5.) In short, the plaintiff brings this action for attorney malpractice
against Bernard Burton and Burton & Associates, P.C. based on their representation of him in an
underlying civil action.
On February 22, 2011, this Court adopted as the opinion of the Court a report and
recommendation issued by Magistrate Judge Bloom on September 7,2010, recommending that
the Court grant the defendants' motion for summary judgment on the plaintiffs original
complaint. The Court granted the plaintiffleave to replead two claims: (l) a claim for attorney

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malpractice based on the defendants' failure to assert a defamation claim on the plaintiffs behalf
in the underlying lawsuit; and (2) a claim for breach of contract.
On March 18, 2011, the plaintiff filed an amended complaint, and the defendants moved
to dismiss that complaint for failure to state a claim. This Court referred the motion to
Magistrate Bloom for a report and recommendation pursuant to 28 U.S.C. § 636(b). Magistrate
Judge Bloom issued her R&R on November 21,2011, recommending that the Court grant the
defendants' motion to dismiss the amended complaint.

DISCUSSION
The Court reviews de novo those portions of the R&R to which a party has objected, and
reviews those portions not objected to for clear error. Larocco v. Jackson, No. 10-CV-1651,
2010 WL 5068006, at *2 (E.D.N.Y. Dec. 6,2010). The Court "may accept, reject, or modify the
recommended disposition" of the magistrate judge. Fed. R. Civ. P. 72.

I. The plaintiff's claim for attorney malpractice
Magistrate Judge Bloom found that the plaintiffs amended complaint, like the original,
fails to adequately allege a claim for attorney malpractice because the plaintiff fails to plead
causation. See Rubens v. Mason, 527 F.3d 252, 255 (2d Cir. 2008) ("To establish proximate
cause [in an attorney malpractice action], the client must meet a case within a case requirement
and must demonstrate that a reasonable fact-finder could conclude that a reasonable fact-finder
in the underlying suit would have arrived at a different result but for the attorney's negligence.")
(quotation marks and citation omitted).
The plaintiff does not object to this determination. The Court has reviewed the R&R, as
well as the amended complaint and the briefing submitted by the parties on the defendants'
motion to dismiss, and concludes that the magistrate judge did not clearly err in reaching this

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conclusion. As Magistrate Judge Bloom explains in the R&R, "[a]ny allegation that plaintiff
could have prevailed on his defamation claim but for defendants' alleged negligence is
conspicuously absent" from the amended complaint. (R&R at 9.) Nor did Magistrate Judge
Bloom clearly err in concluding that the statements the plaintiff appears to complain about
(which are difficult to discern from the amended complaint) were not actionable defamatory
statements. (See R&R at pp. 9-10.) Accordingly, the defendants' motion to dismiss the
plaintiff s malpractice claim is granted.

II. The plaintiff's breach of contract claim
The plaintiff objects to Magistrate Judge Bloom's conclusion that the amended complaint
fails to adequately allege a claim for breach of contract. The plaintiff alleged in his original
complaint that he paid the defendants $35,000 for costs in the underlying lawsuit, and that the
defendants failed to provide an itemization of how this money was spent. Magistrate Judge
Bloom noted in her original report and recommendation that, liberally construed, these
allegations might state a cause of action for breach of contract based on overbilling or padding of
costs. (Dkt. No. 73 at 25.) However, because it appeared that the plaintiffs company, not the
plaintiff himself, paid the defendants' retainer, Magistrate Judge Bloom concluded that the
plaintiff would lack standing to assert such a claim. (Id.) In an abundance of caution, however,
Magistrate Judge Bloom recommended that the plaintiff be given leave to replead a breach of
contract claim based on the defendants' failure to prove an itemization of costs if he could allege
that the plaintiff individually-not his company-paid the defendants. (Id.) This Court agreed
and granted leave to replead.
The Court agrees with Magistrate Judge Bloom that the amended complaint fails to cure
the pleading deficiencies of the original complaint. Although the amended complaint alleges that

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"[a]ll monies for North East Holdings came from Plaintiffs personal account since North East
Holdings had no revenues and was solely owned by plaintiff," the plaintiff nevertheless concedes
in his amended complaint that he "paid Burton & Associates $10,000 up front with a checkfrom

North East Holdings, LLC." (Am. Compl.

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1 (emphasis added).) Thus, the plaintiff still has not

shown that he has standing to assert a breach of contract claim against the defendants based on
their failure to provide him with an itemization of costs.

CONCLUSION
The Court adopts the R&R as the opinion of the Court. The defendants' motion to
dismiss is granted. Because the plaintiff has failed to cure the deficiencies expressly identified
by the Court, leave to replead is denied as futile. Ercole v. LaHood, 07-cv-2049, 2011 WL
1205137, at *15 (E.D.N.Y. Mar. 29, 2011) (holding that the Court need not grant pro se
plaintiffs leave to amend previously has been given and the plaintiff has "fail [ed] to cure the
deficiencies previously identified by the Court"). The Clerk of Court is directed to enter
judgment and close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith and therefore in forma pauperis status is
denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438,444-45 (1962).

SO ORDERED.
Dated: Brooklyn, New York

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,2012

/S/
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CarolJta;I~;~ ~ - -- - --

Chief United States District Judge

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