Muller v. Schecter

194 A.D.3d 1067

144 N.Y.S.3d 607 (Mem)

Jill MULLER, appellant,

v.Jeffrey SCHECTER, et al., respondents.

2017–07815

Index No. 600035/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—March 25, 2021

May 26, 2021

WeitzPascale, Mineola, N.Y. (Andrew L. Weitz of counsel), for appellant.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Karen V. Murphy, J.), entered June 1, 2017. The order, insofar as appealed from, granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint, and denied the plaintiff's application for sanctions.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as denied the plaintiff's application for sanctions is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal from that portion of the order is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action, inter alia, to recover damages for legal malpractice against the defendants, who represented her in a matrimonial action. The defendants moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint. The plaintiff opposed the motion, and made an application for sanctions. The Supreme Court granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) and denied the plaintiff's application for sanctions. The plaintiff appeals.

In determining a motion to dismiss pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept the facts as alleged in the complaint as true, and accord the plaintiff the benefit of every favorable inference (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Murphy v. Department of Educ. of the City of N.Y., 155 A.D.3d 637, 638, 64 N.Y.S.3d 237 ).

"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" ( Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385, quoting McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714 ; see Ferrigno v. Jaghab, Jaghab & Jaghab, P.C., 152 A.D.3d 650, 652, 59 N.Y.S.3d 115 ). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the attorney's negligence" ( Wray v. Mallilo & Grossman, 54 A.D.3d 328, 329, 863 N.Y.S.2d 228 ; see Ferrigno v. Jaghab, Jaghab & Jaghab, P.C., 152 A.D.3d at 652, 59 N.Y.S.3d 115 ; Marino v. Lipsitz, Green, Fahringer, Roll, Salibury & Cambria, LLP, 87 A.D.3d 566, 928 N.Y.S.2d 462 ).

Here, accepting as true the facts alleged in the complaint, and according the plaintiff the benefit of every favorable inference (see Leon v. Martinez, 84 N.Y.2d at 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ), the complaint failed to sufficiently allege a failure by the defendants to exercise the ordinary skill and knowledge commonly possessed by a member of the legal profession and that any...