Opinion
2012-01-31
Elizabeth ALDEN, Plaintiff–Appellant, v. BRINDISI, MURAD, BRINDISI, PEARLMAN, JULIAN and PERTZ (“The PEOPLE'S LAWYER”), Defendant–Respondent.
Elizabeth Alden, Plaintiff–Appellant pro se. Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz, LLP, Utica (Richard Pertz of Counsel), for Defendant–Respondent.
Elizabeth Alden, Plaintiff–Appellant pro se. Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz, LLP, Utica (Richard Pertz of Counsel), for Defendant–Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GORSKI, JJ.
MEMORANDUM:
Supreme Court properly granted defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(7) in this legal malpractice action. Accepting as true the facts set forth in the complaint and according plaintiff the benefit of all favorable inferences arising therefrom, as we must in the context of the instant motion ( see generally Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511), we conclude that the complaint fails to plead a cognizable theory for legal malpractice because it does not permit the inference that any alleged negligence by defendant was a proximate cause of plaintiff's damages ( see Pyne v. Block & Assoc., 305 A.D.2d 213, 760 N.Y.S.2d 30). The proximate cause of any damages sustained by plaintiff was not the alleged legal malpractice of defendant but, rather, the proximate cause of plaintiff's damages was either “the intervening and superseding failure” of plaintiff to retain successor counsel in a timely manner or the failure of successor counsel to commence a timely medical malpractice action on plaintiff's behalf ( Pyne, 305 A.D.2d 213, 760 N.Y.S.2d 30). Indeed, we note that the record establishes that defendant afforded plaintiff and her successor counsel “sufficient time and opportunity to adequately protect plaintiff's rights” ( Somma v. Dansker & Aspromonte Assoc., 44 A.D.3d 376, 377, 843 N.Y.S.2d 577; see Maksimiak v. Schwartzapfel Novick Truhowsky Marcus, P.C., 82 A.D.3d 652, 919 N.Y.S.2d 330; Katz v. Herzfeld & Rubin, P.C., 48 A.D.3d 640, 641, 853 N.Y.S.2d 104; cf. Wilk v. Lewis & Lewis, P.C., 75 A.D.3d 1063, 1066–1067, 905 N.Y.S.2d 410). We have reviewed plaintiff's remaining contentions and conclude that they are either unpreserved for our review or they are without merit.
It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.