Opinion
114079/08.
August 11, 2010.
DECISION and ORDER
Defendant Fox Horan Camerini LLP (Fox Horan) moves, pursuant to CPLR 3211 (a) (7), to dismiss with prejudice the second amended complaint served by plaintiff, who is the "liquidating trustee" of an entity known as Boylan International, Inc. (Boylan). Fox Horan's earlier motion (001) to dismiss the original complaint was granted, with leave for plaintiff to serve an amended complaint with respect to the first three causes of action for legal malpractice provided factual allegations of proximate cause and damages were set forth. This decision also denied plaintiff's request, made in opposition to the motion and not by cross-motion, for leave to serve a proposed amended complaint, the text of which did not cure the infirmities of the original.
Plaintiff's claim arises from Fox Horan's representation of Boylan in a 2003 non-payment proceeding brought against it by its landlord seeking arrears of $276,000 attributable to additional rent measured by real estate tax escalations provided for in the 1997 lease between Boylan and the predecessor landlord. Fox Horan was retained in 2003, but the matter did not come to trial for some 3 years. Boylan's defense seems to have been that the magnitude of the additional rent was occasioned by improvements made by a successor owner of the building which had not been contemplated at the time Boylan's tenancy arose.
It appears that, by the time of trial, there were only months left on the lease, Boylan had other debts beyond whatever was sought by the landlord, and its principal was not in good health. Rather than concluding the trial, a stipulation of settlement was reached the terms of which Boylan could not meet and which the trustee believes were improvident and onerous. After Boylan filed for Chapter 11 relief, the stipulation was vacated with the assistance of other counsel, and a new arrangement made with the landlord, although the company remained in bankruptcy.
In the new version of the complaint, plaintiff has repleaded (1) legal malpractice in failing to properly prepare for trial; (2) legal malpractice in conducting the trial; and (3) legal malpractice in negotiating and "coercing" the settlement, and she asserts a fourth cause of action for breach of fiduciary duty even though the earlier decision dismissed virtually the same claim without leave to replead it.
Plaintiff styles the instant amended complaint simply as "Amended Complaint." However, since plaintiff first proposed to amend her complaint in opposition to the previous motion, Fox Horan refers to the instant amended complaint correctly as the "second amended complaint."
Fox Horan is faulted for having the company settle on the terms of the stipulation rather than proceed with the trial, necessitating the bankruptcy filing, and for the manner in which it went about the trial. The trustee concludes that Fox Horan's conduct damaged Boylan by something approximating the amount of its creditors' claims, but never asserts what better outcome could have been achieved or that Boylan agreed to pay more than was due to the landlord. By implication, the trustee seems to assert that a better lawyer would have been able to eliminate the increased amount of tax escalation rent. That claim is unsound, and defeats the malpractice claim (see, Accurate Copy Service of America, Inc. v Fisk Bldg Assoc., LLC, 72 AD3d 456 [1st Dept, 2010]. The suggestion that the Chapter 11 filing — in which $2 million in debt was disclosed, far more than the amount in dispute with the landlord — could have been avoided, patently is speculative.
Notably, plaintiff makes no averments on information or belief, but asserts her claims as if she had first hand knowledge.
Fox Horan's assertion that the first three causes of action should be dismissed because plaintiff has failed to allege facts sufficient to substantiate proximate cause and damages is well founded. On a motion to dismiss pursuant to CPLR 3211, the pleading should be liberally construed, the facts alleged by the plaintiff should be accepted as true, and all inferences should be drawn in the plaintiff's favor ( Leon v Martinez, 84 NY2d 83); however, the court must determine whether the alleged facts "fit within any cognizable legal theory." Id. at 87-88. Further, "[a]llegations consisting of bare legal conclusions . . . are not presumed to be true [or] accorded every favorable inference [internal quotation marks and citation omitted]." Biondi v Beekman Hill House Apartment Corp., 257 AD2d 76, 81 (1stDept 1999), affd 94 NY2d 659 (2000).
To prevail on a legal malpractice claim, in addition to demonstrating that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in the community, it must be shown that the attorney's breach of this duty proximately caused plaintiff to suffer actual and ascertainable damages. Pellegrino v File, 291 AD2d 60 (1st Dept 2002). To establish causation, a plaintiff must show that it would have prevailed in the underlying action, or would not have incurred damages, but for the attorney's negligence. Rudolph v Shayner Dachs, Stanisci, Corker Sauer, 8 NY3d 438 (2007). Furthermore, even if the attorney improperly advises the client, that advice is not the proximate cause of harm if the client cannot demonstrate the likelihood of success in the underlying action absent such advice. Hill v Fisher Fisher, 203 AD2d 328 (2d Dept 2004).
Most of what plaintiff contends are new allegations amount to no more than repetitions of her earlier allegations, conclusions and speculation. Moreover, plaintiff again relies on her interpretation of Blackstar Publishing Co. v 460 Park Associates ( 137 Misc 2d 414 [Sup Ct, NY County 1987]), about which this court, in its earlier decision, stated that "it is not at all clear that the described defense [in Blackstar] would have succeeded for [plaintiff]." Hence, plaintiff has failed to plead sufficient facts to demonstrate the likelihood of success in the underlying commercial non-payment proceeding. Based on the foregoing, that portion of Fox Horan's motion seeking to dismiss the first three causes of action is granted.
For instance, plaintiff has alleged:
(36): "Fox Horan failed to adequately prepare for trial or prepare Boylan's defenses."
(39): "Defendant . . . failed to adequately adhere to the rules of evidence or the CPLR; failed to adequately educate himself as to the applicable and governing law relevant to the case and the client's defenses; and failed to adequately pursue or preserve the client's applicable defenses."
(104): "The negligent and improper acts of Defendant nullified Ms. Boylan's work over the prior decade not only in building a widely respected business, but in building a viably operating business which covered all of its expenses, including, but not limited to, rent, salaries and other overhead, with existing business and significant revenue."
(106): "The loss of her business was a direct consequence of the Defendant's bad acts which clearly served as the precipitating factor to all that followed."
(108-109): "It is beyond reasonable doubt that by inducing Ms. Boylan to agree to a settlement whose terms could not be met, Fox Horan acted negligently causing significant damage to Boylan.
The entirety of these damages are directly attributable to the malpractice and breach of fiduciary duty of Fox Horan with respect to Boylan."
CPLR 3025 (a) provides that a party may amend its pleadings once without leave of court within 20 days after its service, or at any time before the period for responding to it expires, or within 20 days after service of a pleading responding to it. Subsequently, any further amendment may only be accomplished by leave of court. CPLR 3025 (b). Plaintiff's attempt to add a claim for which leave was not granted and which, in sum and substance, duplicates the claim previously dismissed must fail pursuant to CPLR 3025 (b) and the doctrine of the law of the case. Burgundy Basin Inn, Ltd. v Watkins Glen Grand Prix Corp., 51 AD2d 140 (4th Dept 1976).
Finally, the court cannot grant dismissal "with prejudice". "As the basis of defendant's motion to dismiss for failure to state a cause of action is CPLR 3211 (subd. [a], par. 7), the provision for 'prejudice' is improper. The most that can be done is . . . to deny leave to amend." Estate of Richter v. Novo Corp., 43 AD2d 1, 2 (1st Dept 1973); see also Winter v Bernstein, 177 AD2d 452 (1st Dept 1991). Leave to amend was granted in the decision on motion 001, but plaintiff does not seek leave to amend in this motion, and, in any event, it would not be granted based on the submissions herein.
In view of the foregoing, it is
ORDERED that the motion to dismiss the complaint is granted and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly.