Opinion
No. 14881/09.
2010-09-23
Dermont THOMAS, Plaintiff, v. DINKES & SCHWITZER, P.C., et al., Defendants.
Dermont Thomas, Brooklyn, pro se. William Gentile, Esq., Godosky & Gentile, P.C., New York, for Defendant Dinkes & Schwitzer, P.C.
Dermont Thomas, Brooklyn, pro se. William Gentile, Esq., Godosky & Gentile, P.C., New York, for Defendant Dinkes & Schwitzer, P.C.
FRANCOIS A. RIVERA, J.
Upon the foregoing papers, in this action by plaintiff Dermont Thomas (plaintiff), defendant Dinkes & Schwitzer, P.C. (defendant), by notice of motion filed on May 4, 2010, moves for an order dismissing plaintiff's complaint, pursuant to CPLR 3211(a)(7), on the ground that plaintiff's complaint fails to state a cause of action. Plaintiff opposes defendant's motion.
BACKGROUND
On June 16, 2009, plaintiff, proceeding pro se, filed a summons and complaint under index number 14881/09 with the Kings County Clerk's office. On February 22, 2010, plaintiff filed an amended complaint. On April 15, 2010, plaintiff filed a rewritten amended complaint, which is dated March 9, 2010. Plaintiff's amended complaint consists of seven pages and eleven paragraphs. Above every paragraph are headings which name various causes of action. The headings above the first, second, sixth, and seventh paragraphs state that the sentences below them are for causes of action in legal malpractice, and the headings above the third, fourth, fifth, eighth, ninth, tenth, and eleventh paragraphs state that the sentences below them are for causes of action for breach of fiduciary duties, vicarious liability, fraud, intentional infliction of emotional distress, breach of contract, unjust enrichment, and conspiracy, respectively. The sentences in these paragraphs are not consecutively numbered. The complaint, although it contains numerous words, phrases, and sentences, is completely devoid of any coherent allegations of fact.
MOTION PAPERS
Defendant's motion papers consist of a notice of motion, an attorney's affirmation, and 11 exhibits. The exhibits consist of the following: the amended complaint; the affidavit of former co-defendant Herb Pereira, Esq.; an arbitration agreement executed by plaintiff on April 1, 2008 in the action of Thomas v. Lee Trucking, Inc., which was filed under index number 25161/04 (the Lee Trucking action); a letter from Herb Pereira, Esq. to plaintiff, dated June 4, 2008, advising plaintiff to “think reasonably about [his] decision not to appeal [the arbitration decision]” in the Lee Trucking action; a letter from plaintiff, dated June 9, 2008, to Justice Bertram Gelfand agreeing with his decision in the Lee Trucking action; two checks from defendant for $4,000 each, made payable to plaintiff; an April 20, 2009 order which dismissed, on default, an action similar to the present action, which was filed by plaintiff against defendant under index number 29569/08; a December 22, 2009 order which permitted plaintiff to amend the complaint in this action “as of course”; the record of the Kings County Clerk's Office regarding documents filed in the Thomas v. BHL Transport action under index number 28517/02 (the BHL Transport action); plaintiff's bill of particulars and supplemental bill of particulars in the BHL Transport action, and various physicians' reports and medical records submitted in that action; and plaintiff's bill of particulars and second supplemental bill of particulars in the Lee Trucking action, and various physicians' reports and medical records submitted in that action. Plaintiff, in opposition, has submitted his affirmation; letters dated February 27, 2008 and March 17, 2008 from him to defendant, which purported to terminate defendant's services in the Lee Trucking action; the preliminary conference order in this action dated October 9, 2009; his bill of particulars; and various medical records, medical reports, and papers filed in the Lee Trucking action and the BHL Transport action.
LAW AND APPLICATION
CPLR 3013 provides that “[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” Under this section, “[a] complaint is insufficient if based solely on conclusory statements, unsupported by factual allegations” ( Melito v. Interboro–Mutual Indem. Ins. Co., 73 A.D.2d 819, 820 [1979] ).
CPLR 3014 provides that “[e]very pleading shall consist of plain and concise statements in consecutively numbered paragraphs.” It further provides that “[e]ach paragraph shall contain, as far as practicable, a single allegation.” Liberal construction “cannot be used as a substitute for matters of substance ... nor may conclusory statements of law be utilized to supply material facts by inference” (Didier v. Macfadden Publs., 299 N.Y. 49, 53 [1949] ).
CPLR 3211(a)(7) provides that “[a] party may move for judgment dismissing one or more causes of action asserted against [it] on the ground that ... the pleading fails to state a cause of action.” “On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be liberally construed in the light most favorable to the plaintiff and all allegations must be accepted as true” (Pacific Carlton Dev. Corp. v. 752 Pac., LLC, 62 A.D.3d 677, 679 [2009];see also Leon v. Martinez, 84 N.Y.2d 83, 87 [1994] ). “Initially, the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail' “ (Pacific Carlton Dev. Corp., 62 A.D.3d at 679, 878 N.Y.S.2d 421, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977];see also Heffez v. L & G Gen. Constr., Inc., 56 A.D.3d 526, 526 [2008];Matovcik v. Times Beacon Record Newspapers, 46 A.D.3d 636, 637 [2007];Gershon v. Goldberg, 30 A.D.3d 372, 373 [2006] ). “In assessing a motion under CPLR 3211(a)(7), ... a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint ... and “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” “ (Simmons v. Edelstein, 32 A.D.3d 464, 465 [2006], quoting Leon, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511, quoting Guggenheimer, 43 N.Y.2d at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17). However, “bare legal conclusions are not presumed to be true and are not accorded every favorable inference” (Kupersmith v. Winged Foot Golf Club, Inc., 38 A.D.3d 847, 848 [2007];see also Parola, Gross & Marino, P.C. v. Susskind, 43 AD3d 1020, 1021–1022 [2007];McKenzie v. Meridian Capital Group, LLC, 35 A.D.3d 676, 676 [2006] ).
Defendant moves to dismiss plaintiff's complaint, pursuant to CPLR 3211(a)(7), on the basis that the complaint fails to state a cause of action. Thus, the court must ascertain, first, whether there are factual allegations which give the defendant and the court notice of the transactions or occurrences intended to be proved, and, second, whether those factual allegations allege any cognizable cause of action.
Here, plaintiff's complaint contains no separately numbered factual allegations, nor does each paragraph contain a single allegation in accordance with CPLR 3014. The first sentence of plaintiffs first cause of action states that defendant “failed to exercise the ordinary reasonable skill and knowledge, diligence commonly possessed by a member of the legal profession,” and that defendant breach[ed its] duty to provide truthful information, duties arise from attorney-client relationship, where defendant was hired as trial counsel.” This bare legal conclusion is followed by other sentences and phrases in plaintiff's first cause of action, which state, in pertinent part, as follows:
“Defendant failed to disclose G-medical medical malpractice in artificially inflating the plaintiff lower back injury, and failing to treat him for his 2nd accident on 7/9/03. G-medical malpractice, which caused an irresolvable conflict of interest, which left the plaintiff liable for his own lower back injury and damages. If not for the defendant malpractice, the plaintiff would not have sustained any ascertainable damages and should have recovered lower back damages from the Dermont Thomas v. BHL Transport accident of 5/9/02.”
These incoherent phrases are followed by numerous other rambling incomplete phrases and sentences, which are incomprehensible. Indeed, plaintiff's entire complaint, while filled with a juxtaposition of nouns, verbs, adjectives, and adverbs, fails to contain even one cognizable factual allegation. Rather, it solely contains incoherent conclusory statements. Plaintiff's affirmation similarly contains no coherent or comprehensible factual allegations which could remedy this deficiency in his complaint ( see generally Pike v. New York Life Ins. Co., 72 A.D.3d 1043, 1049 [2010] ).
Defendant strains to read meaning into plaintiff's complaint, and addresses the requisite elements of causes of action for legal malpractice, breach of fiduciary duties, vicarious liability, fraud, intentional infliction of emotional distress, breach of contract, unjust enrichment, and conspiracy. However, since plaintiff has not satisfied the first requirement of pleading facts which give notice of the transactions or occurrences intended to be proved, there are no facts against which to apply the second requirement of whether the alleged facts state a cognizable cause of action ( seeCPLR 3013).
For example, “[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” (Simmons, 32 A.D.3d at 465, 820 N.Y.S.2d 614;see also Caruso, Caruso & Branda, P.C. v. Hirsch, 41 A.D.3d 407, 409 [2007];Edwards v. Haas, Greenstein, Samson, Cohen & Gerstein, P.C., 17 A.D.3d 517, 519 [2005];J–Mar Serv. Ctr., Inc. v. Mahoney, Connor & Hussey, 14 A.D.3d 482, 483 [2005] ). Since plaintiff has failed to satisfy the first hurdle of pleading factual allegations, he cannot meet the requirements of satisfying the above stated necessary showing to allege a sustainable cause of action for legal malpractice.
While, as discussed above, the court must liberally construe factual allegations and will not dismiss a complaint simply because of poor draftsmanship, here, the court cannot strain to give meaning to a pleading which completely fails to state any coherent or comprehensible factual allegations ( seeCPLR 3013). Thus, inasmuch as plaintiff's complaint does not state any cognizable claim in law or in equity, it must be dismissed pursuant to CPLR 3211(a)(7) ( see Heffez, 56 A.D.3d at 526, 867 N.Y.S.2d 198;Simmons, 32 A.D.3d at 465, 820 N.Y.S.2d 614).
CONCLUSION
Accordingly, defendant's motion to dismiss plaintiff's complaint, pursuant to CPLR 3211(a)(7), is granted.
The foregoing constitutes the decision, order, and judgment of the court.