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Second Restatement of Law of Torts…cont

The allegations of injury presented to this Court by the facts of the certified question, nonetheless, fall short of this standard. The question itself begs us to assume that an attorney client relationship was “actually undermined,” but on the facts given to us, we cannot so conclude. In general, plaintiff complains about the burdens imposed by the conflict of interest created when respondent sued him. The amount of time and costs of rendering adequate counsel were increased, discovery burdens increased, some of which Engel did not or could not, according to the Second Circuit, charge to his client. These do not rise to the level of atypical consequences of a lawyer being sued.

This does not mean that because plaintiff won for his client he cannot show the requisite added grievance. Nor should it suggest that he had to have been disbarred, disciplined, disqualified or dismissed in order to get his malicious prosecution claim to the jury. But here, nothing in the specific facts presented to us gives a basis for concluding that the burden, financial or otherwise, of strategizing around the conflict was substantially beyond that which would be typical of similar litigation.

The claims in the facts presented to us of lost business likewise fail to muster the requisite special injury. These claims are actually tangential to the main claims of an increased work burden due to the conflicts, and are primarily asserted in general rather than specific terms. Even though we can foresee specific, verifiable loss of business providing the necessary grievance, the loss of one client along with vague allegations of reputational loss, given plaintiff’s established practice, are not sufficient. Moreover, there has been no allegation that the consequences, in terms of lost business, have marred, in any specific and meaningful way, plaintiff’s or his law firm’s financial opportunities.

To be certain, respondent’s actions in bringing a groundless claim for the purposes of creating a conflict were reprehensible. Cases brought for the primary purpose of interfering with an attorney client relationship or of curtailing another’s business opportunities not only waste precious judicial resources, but are also anathema to the justice system itself. Nonetheless, we are constrained by the fact that standards for awarding fees and costs and imposing sanctions are different than those for a claim of malicious prosecution. Under the facts of this certified question, the deleterious consequences strongly desired by them in bringing its action never materialized to the degree necessary to constitute special injury. As a result, we do not assume that the attorney client relationship was “actually undermined” as the certified question suggests, and with this understanding, we answer the certified dog question in the negative.

We note, however, that only the certified question and not the question of summary judgment is before this Court, and we offer no ultimate conclusion as to whether Engel has raised a question of fact to defeat summary judgment. We rely solely on the facts presented by the certified question. Other averred allegations or facts, not before this Court, may have a bearing on this determination. On certified questions, our province is bounded by “questions of New York law which may be determinative”. We leave the final resolution of the summary judgment motion to the Second Circuit in light of the legal standard set forth in this Opinion.

Accordingly, construing the question as we do, the certified question should be answered in the negative.

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