| Garnett v Fox, Horan & Camerini, LLP |
| 2011 NY Slip Op 01589 [82 AD3d 435] |
| March 3, 2011 |
| Appellate Division, First Department |
| Alma Garnett, as Liquidating Trustee of Boylan International, Inc.,Appellant, v Fox, Horan & Camerini, LLP, Respondent. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Thomas W. Hyland ofcounsel), for respondent.
Appeal from order, Supreme Court, New York County (Jane S. Solomon, J.), enteredDecember 3, 2009, which granted defendant's motion to dismiss the complaint for failure to statea cause of action, and granted leave to plaintiff to amend the legal malpractice causes of action,unanimously dismissed, without costs. Order, same court and Justice, entered August 16, 2010,which granted defendant's motion to dismiss the amended complaint, unanimously modified, onthe law, to deny the motion as to the legal malpractice causes of action, and otherwise affirmed,without costs.
Plaintiff's appeal from the first order, which decided a motion addressed to the sufficiency ofthe original complaint, was rendered academic by her timely amendment of the complaint(see Langer v Garay, 30 AD2d 942 [1968]).
The amended complaint alleges that defendant was negligent in failing to advise BoylanInternational properly, that defendant's negligence caused Boylan's loss, and that Boylansustained actual damages (see Reibman v Senie, 302 AD2d 290 [2003]). Specifically, italleges, inter alia, that defendant failed to mount a defense to Boylan's tax assessment arrearsbased on Blackstar Publ. Co. v 460 Park Assoc. (137 Misc 2d 414 [1987] [escalationclauses should not be applied where the tax increase is caused by extensive renovation that doesnot inure to the tenant's benefit]), negotiated a settlement less beneficial than simply paying thedemanded amount, and coerced Boylan into executing the settlement although it knew of the direconsequences thereof. "A claim for legal malpractice is viable, despite settlement of theunderlying action, if it is alleged that the settlement of the action was effectively compelled bythe mistakes of counsel" (Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1990][citation omitted]). The amended complaint further alleges that, but for defendant's negligence,Boylan would not have had to declare bankruptcy and incur additional attorney's fees. Theseallegations are sufficient to withstand a CPLR 3211 (a) (7) motion. At this stage, plaintiff doesnot have to show a "likelihood of success," as the motion court found, but is required only toplead facts from which it could reasonably be inferred that defendant's negligence caused [*2]Boylan's loss (see InKine Pharm. Co. v Coleman, 305AD2d 151 [2003]). Plaintiff also does not have to show that Boylan actually sustaineddamages but is required only to allege facts from which actual damages could reasonably beinferred (see id.).
The breach of fiduciary duty cause of action is based on the same facts and seek the samerelief as the legal malpractice causes of action and is therefore redundant (see Weil, Gotshal & Manges, LLP vFashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [2004]; LaBrake vEnzien, 167 AD2d 709, 709 [1990]). Concur—Mazzarelli, J.P., Acosta, DeGrasse,Richter and Manzanet-Daniels, JJ. [Prior Case History: 2009 NY Slip Op 32823(U).]