Opinion
12235 Index No. 100164/18 Case No. 2019-2637
10-29-2020
Ayelet OLSEN, Plaintiff–Appellant, v. David S. SMITH, et al., Defendants–Respondents.
Ayelet Olsen, appellant pro se. Abrams Garfinkel Margolis & Bergson, LLP, New York (Andrew W. Gefell of counsel), for respondents.
Ayelet Olsen, appellant pro se.
Abrams Garfinkel Margolis & Bergson, LLP, New York (Andrew W. Gefell of counsel), for respondents.
Renwick, J.P., Gesmer, Kern, Singh, JJ.
Order, Supreme Court, New York County (James E. d'Auguste, J.), entered February 27, 2019, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.
In this action for legal malpractice, plaintiff alleges that defendants' mishandling of her defense in a Family Court proceeding brought against her by nonparty John Doe resulted in her settling a separate civil action and other disputes with Doe on unfavorable terms. The court correctly determined that the complaint is devoid of allegations from which it could be inferred that any negligence by defendants in their handling of the family court proceeding was the "but for" causation of any damages (see Dweck Law Firm v. Mann, 283 A.D.2d 292, 293, 727 N.Y.S.2d 58 [1st Dept. 2001] ; see also Phillips–Smith Specialty Retail Group II v. Parker Chapin Flattau & Klimpl, 265 A.D.2d 208, 210, 696 N.Y.S.2d 150 [1st Dept. 1999], lv denied 94 N.Y.2d 759, 705 N.Y.S.2d 6, 726 N.E.2d 483 [2000] ). Moreover, many of the factual allegations in the complaint, including those concerning the adjournment of a preliminary conference and defendants' alleged wrongful withdrawal from representation, are flatly contradicted by documentary evidence in the record and therefore are not entitled to be considered as true (see Beattie v. Brown & Wood, 243 A.D.2d 395, 663 N.Y.S.2d 199 [1st Dept. 1997] ).
Plaintiff's breach of fiduciary duty and breach of contract claims were properly dismissed as duplicative of the legal malpractice claim (see Courtney v. McDonald, 176 A.D.3d 645, 646, 113 N.Y.S.3d 21 [1st Dept. 2019] ).
We have considered plaintiff's remaining arguments and find them unavailing.