Opinion
Index No.: 524482/2019
07-23-2020
MENDEL E. OFMAN, Plaintiff, v. TENENBAUM BERGER & SHIVERS LLP and DAVID BERGER, Defendants.
NYSCEF DOC. NO. 38 At an IAS Term, Part 66 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 23rd day of JULY 2020. PRESENT: HON. RICHARD VELASQUEZ Justice. Decision and Order
SEQ #001
After having heard oral argument on July 8, 2020 and upon review of the submissions herein, the Court finds as follows:
Defendant, TENENBAUM BERGER & SHIVERS LLP and DAVID BERGER, move this court for an order dismissing the plaintiff's complaint pursuant to CPLR § 3211(a)(1), and (a)(7). Plaintiff opposes the same. (MS#1).
ARGUMENTS
Defendants, contend plaintiff does not allege the elements to state a claim for legal malpractice. Plaintiff opposes the same and contends the Defendants' actions "caus[ed] a delay of almost nine years before a judgment was entered" and that, as a result, "Plaintiff was deprived of the ability to collect on the judgment as Alfonso Latino had left the country."
ANALYSIS
Pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Morone v. Morone, 50 N.Y.2d 481, 484, 429 N.Y.S.2d 592, 413 N.E.2d 1154; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970). "The criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; Rovello v. Orofino Realty Co., 40 N.Y.2d at 636, 389 N.Y.S.2d 314, 357 N.E.2d 970). "[B]are legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on such a motion" (Palazzolo v. Herrick, Feinstein, LLP, 298 AD2d 372, 751 NYS2d 401). If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211(a)(7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see McGuire v. Sterling Doubleday Enters., LP, 19 AD3d 660, 661, 799 NYS2d 65).
To properly allege a legal malpractice cause of action, a pleading must set forth facts tending to show (a) an attorney-client relationship; (b) that the attorney acted negligently; (c) that the alleged negligence was the proximate cause of the plaintiff's damages; and (d) that the plaintiff suffered actual and ascertainable damages as a result of the attorney's actions. See Wexler v. Shea & Gould, 211 AD2d 450, 451 (1st Dep't 1995); Lipsky v. Price, 215 AD2d 102, 103 (1st Dep't 1995); Franklin v. Winard, 199 AD2d 220, 221 (1st Dep't 1993); Zarin v. Reid & Priest, Esqs., 184 AD2d 385, 386 (1st Dep't 1992); Mark Hampton, Inc. v. Bergreen, 173 AD2d 220 (1st Dep't 1991). "A cause of action to recover damages for legal malpractice requires proof of three elements: (1) that the defendant failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community, (2) that such negligence was the proximate cause of the actual damages sustained by the plaintiff, and (3) that, but for the defendant's negligence, the plaintiff would have been successful in the underlying action" (see Edwards v. Haas, Greenstein, Samson, Cohen & Gerstein, P.C., 17 AD3d 517, 519, 793 NYS2d 167; J-Mar Serv. Ctr. v. Mahoney, Connor & Hussey, 14 AD3d 482, 483, 787 NYS2d 390; Zelenaya v. Rosengarten, 301 AD2d 519, 753 NYS2d 116; Svigals v. Hopgood, Calimafde, Kalil & Judlowe, 256 AD2d 460, 683 NYS2d 436; Andrews Beverage Distrib. v. Stern, 215 AD2d 706, 627 NYS2d 423). "Failure to establish proximate cause mandates dismissal of a legal malpractice action (see Brooks v. Lewin, 21 AD3d 731, 734, 800 NYS2d 695, lv. denied 6 NY3d 713, 816 NYS2d 749, 849 NE2d 972). "To survive dismissal, the complaint must show that, but for counsel's alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages" (see Pellegrino v. File, 291 AD2d 60, 63, 738 NYS2d 320); quoting, Simmons v. Edelstein, 32 AD3d 464, 465-66, 820 NYS2d 614, 615 (2006).
In the present case, accepting the facts as alleged in the complaint as true, according plaintiff the benefit of every possible favorable inference, and determining only whether the facts as alleged fit within any cognizable legal theory the only element the plaintiff satisfies for legal malpractice is the existence of an attorney-client relationship. Plaintiff has not alleged facts that satisfy any other element of a claim for legal malpractice. Most notably, the plaintiff was successful in the underlying action and cannot allege that he was unsuccessful. He has not alleged facts showing breach of duty; he has not alleged facts showing 'but for' causation; and he has not alleged facts setting forth actual or ascertainable damages. Therefore, the plaintiff has failed to state a cause of action for legal malpractice.
Accordingly, Defendants, motion to dismiss plaintiff's complaint is hereby Granted, for the reasons stated above. (MS#1). This constitutes the Decision/Order of the Court. Date: JULY 23, 2020
/s/_________
RICHARD VELASQUEZ, J.S.C.