| Feldman v Finkelstein & Partners, LLP |
| 2010 NY Slip Op 06517 [76 AD3d 703] |
| August 31, 2010 |
| Appellate Division, Second Department |
| Andrew Feldman et al.,Appellants-Respondents, v Finkelstein & Partners, LLP, et al.,Respondents-Appellants. |
—[*1] Furman Kornfeld & Brennan, New York, N.Y. (A. Michael Furman of counsel), forrespondents-appellants.
In an action to recover damages for legal malpractice and breach of contract, the plaintiffsappeal, (1) as limited by their brief, from so much of an order of the Supreme Court, DutchessCounty (Pagones, J.), dated June 3, 2009, as granted that branch of the defendants' motion whichwas to dismiss the first cause of action to recover damages for legal malpractice pursuant toCPLR 3211 (a) (7), and (2) from an order of the same court dated September 28, 2009, which,inter alia, denied that branch of their cross motion which was for leave to amend the complaintand granted that branch of the defendants' motion which was to "dismiss" the first cause ofaction in the proposed amended complaint pursuant to CPLR 3211 (a) (5); and the defendantscross-appeal from so much of the order dated June 3, 2009, as denied that branch of their motionwhich was to dismiss the second cause of action to recover damages for breach of contractpursuant to CPLR 3211 (a) (1) and (7).
Ordered that the order dated June 3, 2009, is reversed insofar as appealed and cross-appealedfrom, on the law, without costs or disbursements, that branch of the defendants' motion whichwas to dismiss the first cause of action to recover damages for legal malpractice is denied, andthat branch of the defendants' motion which was to dismiss the second cause of action to recoverdamages for breach of contract pursuant to CPLR 3211 (a) (7) is granted; and it is further,
Ordered that the order dated September 28, 2009, is modified, on the law, on the facts, and inthe exercise of discretion, (1) by deleting the provision thereof denying that branch of theplaintiffs' cross motion which was for leave to amend the first cause of action in the complaint,and substituting therefor a provision granting that branch of the plaintiffs' cross motion, and (2)by deleting the provision thereof granting that branch of the defendants' motion which was to"dismiss" the first cause of action in the proposed amended complaint pursuant to CPLR 3211(a) (5), and substituting therefor a provision denying that branch of the defendants' motion; as somodified, the order dated September 28, 2009, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.[*2]
In determining a motion to dismiss pursuant to CPLR3211 (a) (7), the court must afford the pleading a liberal construction (see CPLR 3026;Leon v Martinez, 84 NY2d 83, 87 [1994]), accept the facts as alleged in the complaint astrue, accord the plaintiff the benefit of every favorable inference, and determine only whether thefacts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d at87-88; Sokol v Leader, 74 AD3d1180 [2010]; Uzzle v Nunzie Ct.Homeowners Assn., Inc., 70 AD3d 928, 929-930 [2010]; Nelson v Roth, 69 AD3d 912[2010]; Morales v AMS Mtge. Servs.,Inc., 69 AD3d 691, 692 [2010]; Matter of Doman, 68 AD3d 862, 863 [2009]).
Contrary to the Supreme Court's determination, the complaint adequately pleaded that thedefendants "failed to exercise that degree of care, still, and diligence commonly possessed by amember of the legal community," and that their negligence was "a proximate cause of damages"(DeNatale v Santangelo, 65 AD3d1006, 1007 [2009]), and, therefore, was sufficient to state a cause of action to recoverdamages for legal malpractice. Contrary to the defendants' contention, there is no indication thatthe Supreme Court considered evidentiary submissions and, thus, the issue to be determined atthis stage is not whether the plaintiffs have a cause of action, but only whether they have statedone (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Sokol v Leader,74 AD3d at 1181-1182). Accordingly, the Supreme Court improperly granted that branch of thedefendants' motion which was to dismiss the first cause of action. However, the plaintiffs' secondcause of action alleging breach of contract was duplicative, and should have been dismissed(see Uzzle v Nunzie Ct. Homeowners Assn., Inc., 70 AD3d at 930; Maiolini v McAdams & Fallon, P.C.,61 AD3d 644, 645 [2009]; Kvetnaya v Tylo, 49 AD3d 608, 609 [2008]; Shivers v Siegel, 11 AD3d 447[2004]).
In light of the foregoing determination, that branch of the defendants' motion which was to"dismiss" the first cause of action in the proposed amended complaint pursuant to CPLR 3211(a) (5) should have been denied.
"Motions for leave to amend pleadings should be freely granted, absent prejudice or surprisedirectly resulting from the delay in seeking leave, unless the proposed amendment is palpablyinsufficient or patently devoid of merit" (Aurora Loan Servs., LLC v Thomas, 70 AD3d 986, 987 [2010];see CPLR 3025 [b]; Tyson vTower Ins. Co. of N.Y., 68 AD3d 977, 979 [2009]; Peerless Ins. Co. v Micro Fibertek, Inc., 67 AD3d 978, 979-980[2009]). Here, the Supreme Court improvidently exercised its discretion in denying that branchof the plaintiffs' cross motion which was for leave to amend the first cause of action in thecomplaint (see CPLR 3025 [b]). However, the remaining causes of action contained inthe proposed amended complaint were duplicative of the first cause of action; thus, the plaintiffsmay not amend the complaint to include those causes of action, as the proposed amendment ispatently devoid of merit (see Goodleafv Tzivos Hashem, Inc., 68 AD3d 817, 817-818 [2009]; Smiley Realty of Brooklyn, LLC v ExcelloFilm Pak, Inc., 67 AD3d 891, 892 [2009]; Uadi, Inc. v Stern, 67 AD3d 899, 900 [2009]). Rivera, J.P., Balkin,Leventhal and Roman, JJ., concur.