Opinion
2019–01951 Index No. 52088/18
09-23-2020
Louis KATSORIS, Appellant, v. BODNAR & MILONE, LLP, Respondent.
Louis C. Katsoris, named herein as Louis Katsoris, Harrison, NY, appellant pro se. Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Lorin A. Donnelly of counsel), for respondent.
Louis C. Katsoris, named herein as Louis Katsoris, Harrison, NY, appellant pro se.
Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Lorin A. Donnelly of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, ROBERT J. MILLER, JJ.
DECISION & ORDER In an action to recover damages for legal malpractice and breach of fiduciary duty, the plaintiff appeals from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated December 31, 2018. The order granted the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff alleged that he retained the defendant to represent him in a matrimonial action against his wife. According to the complaint, about one month after the note of issue was filed in the underlying matrimonial action, the plaintiff terminated the defendant's services and retained another law firm. The plaintiff thereafter settled the underlying matrimonial action by entering into a written stipulation. The plaintiff subsequently 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)(7) to dismiss the complaint. The Supreme Court granted the defendant's motion. The plaintiff appeals.
"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Dinger v. Cefola , 133 A.D.3d 816, 817, 20 N.Y.S.3d 416 ; see Leon v. Martinez , 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). Here, we agree with the Supreme Court's determination that the plaintiff failed to adequately plead a cause of action to recover damages for either legal malpractice or breach of fiduciary duty.
"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 [internal quotation marks omitted]; see Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP , 26 N.Y.3d 40, 19 N.Y.S.3d 488, 41 N.E.3d 353 ; Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer , 8 N.Y.3d 438, 441, 835 N.Y.S.2d 534, 867 N.E.2d 385 ). As to the first prong, "[a]n attorney may be liable for ignorance of the rules of practice, for failure to comply with conditions precedent to suit, for neglect to prosecute or defend an action, or for failure to conduct adequate legal research" ( Conklin v. Owen , 72 A.D.3d 1006, 1007, 900 N.Y.S.2d 118 ; see Dempster v. Liotti , 86 A.D.3d at 176, 924 N.Y.S.2d 484 ). However, the Court of Appeals has recognized, as a matter of law, that "[the] selection of one among several reasonable courses of action does not constitute malpractice" ( Rosner v. Paley , 65 N.Y.2d 736, 738, 492 N.Y.S.2d 13, 481 N.E.2d 553 ; see Bua v. Purcell & Ingrao, P.C. , 99 A.D.3d 843, 846–847, 952 N.Y.S.2d 592 ; Bernstein v. Oppenheim & Co. , 160 A.D.2d 428, 430, 554 N.Y.S.2d 487 ).
To establish causation in a legal malpractice action, "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 lawyer's negligence" ( Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer , 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 ; see Keness v. Feldman, Kramer & Monaco, P.C. , 105 A.D.3d 812, 813, 963 N.Y.S.2d 313 ). "A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel" ( Bernstein v. Oppenheim & Co. , 160 A.D.2d at 430, 554 N.Y.S.2d 487 ; see Leiner v. Hauser , 120 A.D.3d 1310, 1311, 992 N.Y.S.2d 359 ; Keness v. Feldman, Kramer & Monaco, P.C. , 105 A.D.3d at 813, 963 N.Y.S.2d 313 ; Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C. , 21 A.D.3d 1082, 1083, 803 N.Y.S.2d 571 ). "[A] plaintiff must plead and prove actual, ascertainable damages as a result of an attorney's negligence" ( Dempster v. Liotti , 86 A.D.3d at 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" ( Bua v. Purcell & Ingrao, P.C. , 99 A.D.3d at 848, 952 N.Y.S.2d 592 [citations omitted]; see Janker v. Silver, Forrester & Lesser, P.C. , 135 A.D.3d 908, 909–910, 24 N.Y.S.3d 182 ; Dempster v. Liotti , 86 A.D.3d at 177, 924 N.Y.S.2d 484 ; Hashmi v. Messiha , 65 A.D.3d 1193, 1195, 886 N.Y.S.2d 712 ; Riback v. Margulis , 43 A.D.3d 1023, 1023, 842 N.Y.S.2d 54 ).
Here, the complaint failed to adequately allege actual, ascertainable damages. The general allegations that, as a result of the alleged acts of malpractice, the plaintiff was caused to incur "additional legal fees," and caused to suffer "financial damages and expense," "adverse financial consequences," and "direct financial damage," were all conclusory and inadequate to constitute "actual, ascertainable damages" ( Dempster v. Liotti , 86 A.D.3d at 177, 924 N.Y.S.2d 484 ). To the extent that the complaint addressed the plaintiff's settlement, the complaint alleged that the defendant's negligence in its handling of the divorce action caused the plaintiff to suffer "direct prejudice ... in both trial and/or settlement," and that, but for such negligence, the plaintiff "would have fared far better at trial and/or in settlement of the Divorce Action." These allegations are conclusory and lack any factual support, and they are inadequate to sufficiently allege that the stipulation of settlement that the plaintiff entered into with his former wife was "effectively compelled" by the mistakes of counsel ( Rau v. Borenkoff , 262 A.D.2d 388, 389, 691 N.Y.S.2d 140 ; see Benishai v. Epstein , 116 A.D.3d 726, 728, 983 N.Y.S.2d 618 ). "The fact that the plaintiff subsequently was unhappy with the settlement [he] obtained ... does not rise to the level of legal malpractice" ( Holschauer v. Fisher , 5 A.D.3d 553, 554, 772 N.Y.S.2d 836 ). "Moreover, the plaintiff failed to plead specific factual allegations showing that, had he not settled, he would have obtained a more favorable outcome" ( Schiller v. Bender, Burrows & Rosenthal, LLP , 116 A.D.3d 756, 758, 983 N.Y.S.2d 594 ; see Keness v. Feldman, Kramer & Monaco, P.C. , 105 A.D.3d at 813, 963 N.Y.S.2d 313 ; Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C. , 21 A.D.3d at 1083, 803 N.Y.S.2d 571 ; Dweck Law Firm v. Mann , 283 A.D.2d 292, 293, 727 N.Y.S.2d 58 ; Rau v. Borenkoff , 262 A.D.2d at 389, 691 N.Y.S.2d 140 ). Accordingly, we agree with the Supreme Court's determination to grant that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action, alleging legal malpractice. We also agree with the Supreme Court's determination to grant that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, which alleged breach of fiduciary duty. The second cause of action was duplicative of the legal malpractice cause of action, as it arose from the same operative facts, and did not allege different and distinct damages (see Dormitory Auth. of the State of N.Y. v. Samson Constr. Co. , 30 N.Y.3d 704, 712, 70 N.Y.S.3d 893, 94 N.E.3d 456 ; Gorunkati v. Baker Sanders, LLC , 179 A.D.3d 904, 117 N.Y.S.3d 291 ; Courtney v. McDonald , 176 A.D.3d 645, 645–646, 113 N.Y.S.3d 21 ; Urias v. Daniel P. Buttafuoco & Assoc., PLLC , 173 A.D.3d 1244, 1245, 104 N.Y.S.3d 712 ; Attallah v. Milbank, Tweed, Hadley & McCloy, LLP , 168 A.D.3d 1026, 1029, 93 N.Y.S.3d 353 ; Kliger–Weiss Infosystems, Inc. v. Ruskin Moscou Faltischek, P.C. , 159 A.D.3d 683, 684–685, 73 N.Y.S.3d 205 ).
LEVENTHAL, J.P., ROMAN, COHEN and MILLER, JJ., concur.