On April 10, 2023, Justice Chan of the New York County Commercial Division issued a decision in Prime Props. (USA) LLC v. Kefalas, 2023 NY Slip Op. 31203(U), holding that a professional acting within the scope of his or her duties could not be liable for aiding and abetting a breach of fiduciary duty, explaining:
The Fifth and Sixth Causes of Action for aiding and abetting (i) breach of fiduciary duty and (ii) fraud fare no better. The First Department has explained:
In general, all who aid and abet the commission of a trespass are liable. But where one acts only in the execution of the duties of his calling or profession, and does not go beyond it, and does not actually participate in the trespass, he is not liable, though what he does may aid another in its commission. Moreover, it is recognized that public policy demands that attorneys, in the exercise of their proper functions as such, shall not be civilly liable for their acts when performed in good faith and for the honest purpose of protecting the interests of their clients.
Prime’s allegations that Kordas prepared the officer’s certificate and closing statement are insufficient to support Prime’s claims. Such actions, as alleged, are within the duties of Kordas’s calling as counsel. Nor can Prime reasonably lay liability on Kordas for his devising defenses and strategies in this litigation, which again is clearly within the scope of Kordas’s professional responsibilities.
Cassaforte Ltd. v Pourtavoosiis distinguishable in that the allegations against the attorney defendant included that allegations that the attorney prepared the certificate that misrepresented the operational provisions of agreements of certain entities involved in the transaction. Here, the closest Prime comes to analogous actions is that Kordas allegedly drafted the mortgage satisfaction document that Prime posits is false but Prime ignores Prime’s assignment of the mortgage to Alma. Prime alleges that Kefalas executed the mortgage satisfaction simultaneously with the mortgage assignment. For the satisfaction necessarily to be false, it would have needed to be executed after the assignment was effective.
As to Prime’s allegation that it is virtually certain that Kordas and Kefalas discussed the officer’s certificate and Kordas knew Kefalas would misuse it, such claim is unavailing under the special pleading standards required by CPLR 3016 (b).
(Internal quotations and citations omitted).