| Held v Seidenberg |
| 2011 NY Slip Op 06249 [87 AD3d 616] |
| August 16, 2011 |
| Appellate Division, Second Department |
| Venera Held, Appellant, v Harold Seidenberg,Respondent. |
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Steinberg & Cavaliere, LLP, White Plains, N.Y. (Ronald W. Weiner of counsel), forrespondent.
In an action to recover damages for legal malpractice, the plaintiff appeals from an order ofthe Supreme Court, Rockland County (Jamieson, J.), entered June 1, 2010, which granted thatbranch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211 (a)(7) for failure to state a cause of action.
Ordered that the order is affirmed, with costs.
On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiffthe benefit of every possible inference, and determine only whether the facts as alleged fit withinany cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314,326 [2002]; Leon v Martinez, 84 NY2d 83, 87 [1994]). "To state a cause of action torecover damages for legal malpractice, a plaintiff must allege: (1) that the attorney 'failed toexercise the ordinary reasonable skill and knowledge commonly possessed by a member of thelegal profession'; and (2) that the attorney's breach of the duty proximately caused the plaintiffactual and ascertainable damages" (Dempster v Liotti, 86 AD3d 169, 176 [2011], quoting Leder v Spiegel, 9 NY3d 836, 837[2007], cert denied sub nom. Spiegel v Rowland, 552 US 1257 [2008]; see Rudolf v Shayne, Dachs, Stanisci,Corker & Sauer, 8 NY3d 438, 442 [2007]).
Here, the complaint, viewed in the light most favorable to the plaintiff (see Leon vMartinez, 84 NY2d at 87-88), failed to set forth allegations sufficient to state a cause ofaction to recover damages for legal malpractice (see Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1018[2010]; DeNatale v Santangelo, 65AD3d 1006 [2009]; Analisa Salon,Ltd. v Elide Props., LLC, 63 AD3d 1091 [2009]). Accordingly, the Supreme Courtproperly granted that branch of the defendant's motion which was to dismiss the complaintpursuant to CPLR 3211 (a) (7) for failure to state a cause of action. Skelos, J.P., Belen, Hall andRoman, JJ., concur. [Prior Case History: 27 Misc 3d 1235(A), 2010 NY Slip Op51041(U).]