Opinion
2011-08-16
Venera HELD, appellant,v.Harold SEIDENBERG, etc., respondent.
Ronald V. DeCaprio, Garnerville, N.Y., for appellant.Steinberg & Cavaliere, LLP, White Plains, N.Y. (Ronald W. Weiner of counsel), for respondent.
In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Rockland County (Jamieson, J.), entered June 1, 2010, which granted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211 (a)(7) for failure to state a cause of action.
ORDERED that the order is affirmed, with costs.
On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see
Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511). “To state a cause of action to recover damages for legal malpractice, a plaintiff must 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 the duty proximately caused the plaintiff actual and ascertainable damages” ( Dempster v. Liotti, 86 A.D.3d 169, 176, 924 N.Y.S.2d 484, quoting Leder v. Spiegel, 9 N.Y.3d 836, 837, 840 N.Y.S.2d 888, 872 N.E.2d 1194, cert. denied sub nom. Spiegel v. Rowland, 552 U.S. 1257, 128 S.Ct. 1696, 170 L.Ed.2d 354; see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385).
Here, the complaint, viewed 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), failed to set forth allegations sufficient to state a cause of action to recover damages for legal malpractice ( see Kennedy v. H. Bruce Fischer, Esq., P.C., 78 A.D.3d 1016, 1018, 912 N.Y.S.2d 590; DeNatale v. Santangelo, 65 A.D.3d 1006, 884 N.Y.S.2d 868; Analisa Salon, Ltd. v. Elide Props., LLC, 63 A.D.3d 1091, 881 N.Y.S.2d 301). Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action.
SKELOS, J.P., BELEN, HALL and ROMAN, JJ., concur.