Opinion
15527 Index No. 650767/20 Case No. 2021–02452
03-15-2022
Sheryl R. MENKES, Plaintiff–Appellant, v. SOLOMON & CRAMER LLP et al., Defendants–Respondents.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant. Kaufman Dolowich & Voluck, LLP, New York (Anthony J. Proscia of counsel), for respondents.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant.
Kaufman Dolowich & Voluck, LLP, New York (Anthony J. Proscia of counsel), for respondents.
Gische, J.P., Kern, Gonza´lez, Shulman, Higgitt, JJ.
Order, Supreme Court, New York County (Lewis J. Lubell, J.), entered June 23, 2021, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff's legal malpractice claim was correctly dismissed in accordance with CPLR 3211(a)(7) for failure to state a cause of action. Even accepting plaintiff's allegations as true, the complaint contains only conclusory allegations that any negligence by defendants in not raising an affirmative claim for interest in a fee dispute between plaintiff and two attorneys was the "but for" cause of plaintiff's alleged damages ( AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 434, 834 N.Y.S.2d 705, 866 N.E.2d 1033 [2007] ; Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 50, 19 N.Y.S.3d 488, 41 N.E.3d 353 [2015] ). Plaintiff's contention that the motion court in the fee dispute would have awarded her predecision interest pursuant to CPLR 5001 is at best speculative (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 443, 835 N.Y.S.2d 534, 867 N.E.2d 385 [2007] ; see also Manufacturer's & Traders Trust Co. v. Reliance Ins. Co., 8 N.Y.3d 583, 589–590, 838 N.Y.S.2d 806, 870 N.E.2d 124 [2007] ).
Nor does the fact that defendants signed a stipulation on plaintiff's behalf, releasing the holder of the escrow account from liability, constitute malpractice. Plaintiff, an experienced personal injury attorney, executed an affirmation in which she agreed to most of the terms proffered by the escrow counsel, one of which released him from any liability once the amounts in the account were distributed. As a result, defendants' execution of a stipulation containing largely the same language was consistent with plaintiff's express representations and not the "but for" cause of any alleged loss.