| Malik v Beal |
| 2008 NY Slip Op 07096 [54 AD3d 910] |
| September 23, 2008 |
| Appellate Division, Second Department |
| Abdul Malik, Respondent, v Kenneth Beal, Appellant, andJoseph Siegel, Respondent. |
—[*1] Richman & Levine, P.C., Garden City, N.Y. (Seth A. Levine of counsel), forplaintiff-respondent.
In an action to recover damages for breach of contract and legal malpractice, the defendantKenneth Beal appeals from an order of the Supreme Court, Nassau County (O'Connell, J.), datedNovember 26, 2007, which denied his motion pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint insofar as asserted against him or, in the alternative, to stay all proceedings in theaction insofar as asserted against him, pending disposition of the plaintiff's cause of actionagainst the defendant Joseph Siegel.
Ordered that the order is affirmed, with costs.
In May 2006 the plaintiff Abdul Malik, as purchaser, entered into a contract with thedefendant Joseph Siegel, as seller, to purchase certain multiuse commercial real property andimprovements. The plaintiff retained the defendant attorney Kenneth Beal to negotiate the termsand conditions of the contract. The executed contract contained a provision that "[a]t closing, theSeller shall deliver copies of all existing Certificates of Occupancy for the premises."Subsequently, Siegel refused to produce certificates for all of the buildings and improvements onthe premises, asserting that they did not exist and that he had no obligation under the language ofthe contract to procure and deliver them. As a result, the plaintiff was unable to obtain financingfor the acquisition, and Siegel declared the plaintiff in breach of the contract and retained theplaintiff's down payment of $173,000.
The plaintiff commenced this action against Beal and Siegel, asserting a legal malpracticecause of action against Beal and a breach of contract cause of action against Siegel.[*2]
Beal moved pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint insofar as asserted against him or, in the alternative, to stay the action against Bealpending the determination of the plaintiff's cause of action against Siegel. The Supreme Courtdenied the motion in its entirety.
On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must determine, acceptingas true the factual averments of the complaint and according the plaintiff every benefit of allfavorable inferences, whether the plaintiff can succeed upon any reasonable view of the factsstated (see Simmons v Edelstein, 32AD3d 464, 465 [2006]; Manfro vMcGivney, 11 AD3d 662, 663 [2004]).
To prevail in an action to recover damages for legal malpractice, a plaintiff must establishthat the defendant did not "exercise the ordinary reasonable skill and knowledge commonlypossessed by a member of the legal profession, and that the attorney's breach of that dutyproximately caused the plaintiff to sustain actual and ascertainable damages" (Carrasco v Pena & Kahn, 48 AD3d395, 396 [2008]; see Rudolf vShayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Erdman v Dell, 50 AD3d 627[2008]). To establish causation, a plaintiff must show that he or she would have prevailed in theunderlying action or would not have incurred any damages, but for the attorney's negligence(see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). Here, Bealcontends that the plaintiff's complaint fails to state a cause of action to recover damages for legalmalpractice because he cannot establish the "but for" element. We disagree.
In his complaint, the plaintiff alleges that Beal, inter alia, negligently negotiated the termsand conditions of the contract of sale, thereby permitting Siegel to refuse to procure and deliverthe necessary certificates of occupancy for the improvements on the subject premises so that hecould obtain financing for the sale. As a result, the complaint alleges that the plaintiff has beendamaged by Siegel's retention of the $173,000 down payment.
Taking these allegations as true and according the plaintiff the benefit of every possiblefavorable inference, we find they state a legally cognizable cause of action to recover damagesfor legal malpractice (see Gelfand vOliver, 29 AD3d 736 [2006]).
The Supreme Court providently exercised its discretion in denying Beal's motion for a stay(see Mourtil v Korman & Stein, P.C.,33 AD3d 898, 899 [2006]; Esposit v Anderson Kill Olick & Oshinsky, 237AD2d 246 [1997]). Fisher, J.P., Carni, McCarthy and Belen, JJ., concur.