Williams v. Silverstone

185 N.Y.S.3d 699 (Mem)

Nicole WILLIAMS, appellant,

v.Stanley J. SILVERSTONE, etc., respondent.

2020–07862

Index No. 508643/20

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

Argued—January 12, 2023

April 12, 2023

Maker, Fragale & Di Costanzo LLP, Rye, NY (Constantino Fragale of counsel), for appellant.

Furman Kornfeld & Brennan LLP, Elmsford, NY (Christopher D. Skoczen of counsel), for respondent.

BETSY BARROS, J.P., REINALDO E. RIVERA, LARA J. GENOVESI, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), dated October 1, 2020. The order granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff, a former Superintendent of Schools of the Poughkeepsie City School District (hereinafter the school district), retained the defendant attorney to represent her in connection with disputes (hereinafter the underlying matters) concerning, inter alia, the enforceability of her employment agreement with the Board of Education of the school district (hereinafter the Board). Members of the Board, among other things, sought to declare the plaintiff's employment agreement null and void. Subsequently, the plaintiff settled the underlying matters with the Board by entering into a separation and settlement agreement.

Thereafter, the plaintiff commenced this action against the defendant to recover damages for legal malpractice and breach of fiduciary duty. The defendant moved pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint. In an order dated October 1, 2020, the Supreme Court granted the motion on the ground that the complaint failed to state a cause of action. The plaintiff appeals.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; see Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d 1504, 1505, 131 N.Y.S.3d 89 ). Where, as here, the defendant submitted evidentiary material in support of his motion pursuant to CPLR 3211(a)(7) to dismiss the complaint, the criterion becomes whether the plaintiff has a cause of action, not whether one is stated (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; Jean–Paul v. Rosenblatt, 208 A.D.3d 652, 653, 171 N.Y.S.3d 906 ).

To state a cause of action to recover damages for legal malpractice, a plaintiff is required to allege (1) that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession"; and (2) "that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" ( Jean–Paul v. Rosenblatt, 208 A.D.3d at 653, 171 N.Y.S.3d 906 [internal quotation marks omitted]; see Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d at 1505, 131 N.Y.S.3d 89 ). As to the first prong, an attorney may be liable, inter alia, for neglect to prosecute or defend an action (see Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d at 1506, 131 N.Y.S.3d 89 ; Dempster v. Liotti, 86 A.D.3d 169, 176–177, 924 N.Y.S.2d 484 ). However, even if a plaintiff establishes the first prong, the plaintiff must still plead specific factual allegations demonstrating that he or she would have succeeded on the merits of the action but for the attorney's negligence (see Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d at 1506, 131 N.Y.S.3d 89 ; Dempster v. Liotti, 86 A.D.3d at 176–177, 924 N.Y.S.2d 484 ). "Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative" ( Jean–Paul v. Rosenblatt, 208 A.D.3d at 653, 171 N.Y.S.3d 906 [internal quotation marks omitted]; see Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d 714, 716, 169 N.Y.S.3d 90 ).

Here, even if the defendant had been negligent in his representation of the plaintiff in connection with the underlying matters, viewing the complaint in the light most favorable to the plaintiff (see Leon v. Martinez, 84 N.Y.2d at 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ), it failed to plead specific factual allegations demonstrating that, but for the defendant's alleged negligence, there would have been a more favorable outcome in the underlying matters or that the plaintiff would not have incurred any damages (see York v. Frank, 209 A.D.3d 804, 807, 176 N.Y.S.3d 133 ; Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d at 1506, 131 N.Y.S.3d 89 ; Benishai v. Epstein, 116 A.D.3d 726, 728, 983 N.Y.S.2d 618 ). The plaintiff's general contentions that but for the defendant's negligence, she "would have litigated her claims against the Board, or in the alternative, procured a settlement agreement with better terms of compensation and otherwise far more beneficial" are...