| Bua v Purcell & Ingrao, P.C. |
| 2012 NY Slip Op 06908 [99 AD3d 843] |
| October 17, 2012 |
| Appellate Division, Second Department |
| Mario Bua, Appellant, v Purcell & Ingrao, P.C., et al.,Respondents. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Diane P. Whitfield and ScottE. Kossove of counsel), for respondents.
In an action to recover damages for legal malpractice, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Driscoll, J.), entered November 23, 2010, which granted thedefendants' motion pursuant to CPLR 3211 (a) to dismiss the amended complaint and denied, asacademic, the plaintiff's cross motion to consolidate the action with an action commenced by thedefendants against the plaintiff to recover unpaid legal fees.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages allegedly sustained as a result of thedefendants' legal malpractice. The amended complaint alleged that the plaintiff retained thedefendants to represent and advise him in connection with the sale of certain real property. Theplaintiff entered into a contract of sale with a buyer, who tendered a deposit to be held in escrow.The amended complaint further alleged that, prior to the closing date, the buyer's attorneyattempted to terminate the contract of sale because the buyer was unable to obtain financing forthe purchase. The defendant Joseph A. Ingrao informed the plaintiff that the buyer wished tocancel the contract of sale, and the plaintiff agreed to cancel the contract and return the deposit.
The amended complaint stated that Ingrao sent the buyer's attorney a letter "purporting toterminate" the contract of sale and returning the deposit. More than seven months later, however,the buyer attempted to revive the contract of sale and purchase the property under its terms. Theplaintiff refused, maintaining that the contract had been terminated. The buyer subsequentlycommenced an action against the plaintiff for specific performance of the contract of sale andfiled a notice of pendency. In that action, the plaintiff argued, inter alia, that the contract of sale,had been terminated when the deposit was returned. The plaintiff also commenced a holdoverproceeding. The plaintiff ultimately prevailed in the specific performance action.
The amended complaint asserted that the defendants committed malpractice by failing to"obtain a clear and unambiguous termination of the [contract of sale] after [the buyer's] attorneysadvised Ingrao that she wished to terminate the [contract of sale]." The amended complaint listedvarious things that the plaintiff claimed the defendants "should have done" in order toaccomplish [*2]a "clear and unambiguous" termination of thecontract of sale.
The amended complaint alleged that, as a result of the defendants' malpractice, the plaintiffsustained damages in the form of, inter alia, legal fees and costs incurred in the specificperformance action and the holdover proceeding. The plaintiff also asserted that his damagesincluded the loss of rental income, the loss of value to the property, and the loss of profits thatwould have been realized if he had been able to sell the property free of the notice of pendencythat was filed in connection with the action for specific performance.
The defendants moved to dismiss the amended complaint pursuant to CPLR 3211 (a) (1) and(7), submitting documentary evidence in support of their motion. The defendants contended thatthe plaintiff should be judicially estopped from asserting the malpractice cause of action since itwas premised on a position inconsistent with a position he took in the specific performanceaction. The defendants also contended that the amended complaint failed to state a cause ofaction to recover damages for legal malpractice.
The plaintiff opposed the motion and cross-moved to consolidate this action with an actioncommenced by the defendants against the plaintiff to recover unpaid legal fees. The SupremeCourt granted the defendants' motion to dismiss the amended complaint on the ground that it wasbarred by the doctrine of judicial estoppel and denied, as academic, the plaintiff's cross motion.We affirm the Supreme Court's order, but on grounds different from those relied upon by theSupreme Court (see South Point, Inc. vRedman, 94 AD3d 1086, 1087 [2012]; Matter of Long Is. Pine Barrens Socy., Inc. v County of Suffolk, 55AD3d 610, 611-612 [2008]; Goldinv Engineers Country Club, 54 AD3d 658, 659 [2008]; Garcha v City of Beacon, 39 AD3d587, 588 [2007]; Green vConciatori, 26 AD3d 410, 410-411 [2006]; see also Menorah Nursing Home vZukov, 153 AD2d 13, 19 [1989]).
A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only if thedocumentary evidence submitted by the moving party utterly refutes the factual allegations of thecomplaint and conclusively establishes a defense to the claims as a matter of law (see Goshenv Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). On a motion to dismiss acomplaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court mustaccept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possibleinference, and determine only whether the facts as alleged fit within any cognizable legal theory(see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Leon v Martinez,84 NY2d 83, 87 [1994]). Where a party offers evidentiary proof on a motion pursuant to CPLR3211 (a) (7), and such proof is considered but the motion has not been converted to one forsummary judgment, "the criterion is whether the proponent of the pleading has a cause of action,not whether he [or she] has stated one, and, unless it has been shown that a material fact asclaimed by the pleader to be one is not a fact at all and unless it can be said that no significantdispute exists regarding it . . . dismissal should not eventuate" (Guggenheimer vGinzburg, 43 NY2d 268, 275 [1977]; see Jannetti v Whelan, 97 AD3d 797 [2012]).
In an action to recover damages for legal malpractice, a plaintiff must demonstrate that theattorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by amember of the legal profession and that the attorney's breach of this duty proximately caused theplaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d438, 442 [2007]; Bells v Foster,83 AD3d 876, 877 [2011]).
Here, the amended complaint alleges, and the parties do not dispute, that the buyer attemptedto terminate the contract of sale prior to the closing date. As the plaintiff argued in the actionagainst him for specific performance, he considered this attempted termination an anticipatoryrepudiation of the contract (see D'Abreau v Smith, 240 AD2d 616, 617 [1997]; cf.Rachmani Corp. v 9 E. 96th St. Apt. Corp., 211 AD2d 262, 268 [1995]). Under suchcircumstances, the plaintiff could immediately elect to treat the repudiation as a breach andrescind the contract, or await the expiration of the time for the buyer's performance andcommence an action thereafter (seeSmith v Tenshore Realty, Ltd., 31 AD3d 741, 742 [2006]; Velazquez v Equity LLC, 28 AD3d473, 474-475 [2006]; see also, 23 Richard A. Lord, Williston on Contracts §63:33 at 559 [4th ed]).[*3]
The amended complaint stated that Ingrao advised theplaintiff of the buyer's attempted termination of the contract and that the plaintiff agreed torescind the contract and return the buyer's deposit. Ingrao promptly notified the buyer of thecancellation of the contract of sale and returned the deposit and tendered a check for the escrowinterest.
The amended complaint does not explicitly assert that the defendants committed legalmalpractice by their failure to effect a legally valid termination of the contract of sale. Indeed, onthis appeal, the plaintiff "concedes that the [contract of sale] was legally terminated upon Ingrao'sreturn of the [d]eposit."
In any event, the documentary evidence submitted in support of the defendants' motiondemonstrated that, in the action for specific performance, the plaintiff took the position thatIngrao effected a valid termination of the contract of sale under New York law by sending noticeof the termination and returning the deposit after the buyer's attempted termination. Accordingly,to the extent that the amended complaint may be construed as alleging that the defendants failedto legally terminate the contract of sale, the plaintiff is estopped from taking such a position inthis action, as it is inconsistent with the position he took in the specific performance action(see Kimco of N.Y. v Devon, 163 AD2d 573, 575 [1990]; Environmental Concern vLarchwood Constr. Corp., 101 AD2d 591, 594 [1984]).
However, although the plaintiff cannot contest the legal effectiveness of Ingrao's terminationof the contract of sale, the plaintiff nevertheless takes issue with the method by which thedefendants terminated that contract. In this regard, he urges that the defendants were negligent infailing to take additional steps in order to accomplish what the amended complaint refers to as "aclear and unambiguous" termination. Thus, the plaintiff would hold the defendants liable forfailing to accomplish something more than a legal termination of the contract of sale.
The standard to which the defendant's conduct is to be compared is not that of the mosthighly skilled attorney, nor is it that of the average member of the legal profession, but that of anattorney who is competent and qualified (see Restatement [Second] of Torts: Negligence§ 299 A, Comment e). The conduct of legal matters routinely "involve[ ] questionsof judgment and discretion as to which even the most distinguished members of the professionmay differ" (Byrnes v Palmer, 18 App Div 1, 4 [1897], affd 160 NY 699 [1899]).Absent an express agreement, an attorney is not a guarantor of a particular result (see Byrnesv Palmer, 18 App Div at 4; see also 1B NY PJI3d 2:152 at 140-141 [2012]), and maynot be held "liable in negligence for . . . the exercise of appropriate judgment thatleads to an unsuccessful result" (Rubinberg v Walker, 252 AD2d 466, 467 [1998]; seeGrago v Robertson, 49 AD2d 645, 646 [1975]; see also PJI 2:152).
It follows that "[the] selection of one among several reasonable courses of action does notconstitute malpractice" (Rosner v Paley, 65 NY2d 736, 738 [1985]; see Dimond v Kazmierczuk &McGrath, 15 AD3d 526, 527 [2005]). Attorneys are free to act in a manner that is"reasonable and consistent with the law as it existed at the time of representation," withoutexposing themselves to liability for malpractice (Darby & Darby v VSI Intl., 95 NY2d308, 315 [2000]; see Noone vStieglitz, 59 AD3d 505, 507 [2009]; Iocovello v Weingrad & Weingrad, 4 AD3d 208, 208 [2004]).
Here, the plaintiff, after consulting with Ingrao, agreed to terminate the contract of sale, andthe defendants effected a legally valid termination. The plaintiff alleges that the defendantsshould have taken additional steps to "clearly and unambiguously" terminate the contract of sale.Although those additional steps may have been reasonable courses of action, they were notnecessary to achieve the desired legal result (cf. Logalbo v Plishkin, Rubano & Baum,163 AD2d 511, 514 [1990]; Shaughnessy v Baron, 151 AD2d 561, 562 [1989]). Thecourse of action that the defendants took was among the reasonable options available and, evenaccepting the plaintiff's allegations as true, they fail to adequately allege a breach of theapplicable standard of care (see Leder vSpiegel, 9 NY3d 836, 837 [2007], cert denied sub nom. Spiegel v Rowland, 552US 1257 [2008]; Rosner v Paley, 65 NY2d at 738; Hefter v Citi Habitats, Inc., 81 AD3d 459, 459 [2011]; Sklover & Donath, LLC vEber-Schmid, 71 AD3d 497, 498 [2010]; Ideal Steel Supply Corp. v Beil, 55 AD3d 544, 545-546 [2008];Palazzolo v Herrick, Feinstein, LLP, 298 AD2d 372, 372-373 [2002]; Zarin v Reid &Priest, 184 AD2d 385, 387 [1992]; Novak v Fischbein, [*4]Olivieri Rozenholc & Badillo, 151 AD2d 296, 299 [1989]).
The amended complaint also failed to adequately allege that the defendants' breach of theirprofessional duty proximately caused the plaintiff actual damages. Damages in a legalmalpractice case are designed "to make the injured client whole" (Campagnola v Mulholland,Minion & Roe, 76 NY2d 38, 42 [1990]). Accordingly, "litigation expenses incurred in anattempt to avoid, minimize, or reduce the damage caused by the attorney's wrongful conduct canbe charged to the attorney" (DePinto v Rosenthal & Curry, 237 AD2d 482, 482-483[1997]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 443). Theplaintiff is required to plead actual, ascertainable damages that resulted from the attorneys'negligence (see Dempster v Liotti,86 AD3d 169, 176 [2011]). Conclusory allegations of damages or injuries predicated onspeculation cannot suffice for a malpractice action (see Wald v Berwitz, 62 AD3d 786, 787 [2009]; Holschauer v Fisher, 5 AD3d 553,554 [2004]), and dismissal is warranted where the allegations in the complaint are merelyconclusory and speculative (see Hashmiv Messiha, 65 AD3d 1193, 1195 [2009]; Riback v Margulis, 43 AD3d 1023, 1023 [2007]).
Here, the damages alleged in the amended complaint consist of expenses incurred inconnection with the action for specific performance, potential profits that were not realizedbecause of the effect of the notice of pendency, and costs and lost profits incurred by virtue of thebuyer's refusal to vacate the property. The crux of the plaintiff's contention is that the buyerwould not have chosen to commence the action for specific performance and would havevoluntarily vacated the premises if the defendants had taken the additional enumerated steps toaccomplish the termination of the contract of sale. The plaintiff's contention rests on speculationas to how the buyer would have responded to these requests. In addition, the damages cited bythe plaintiff all stem from the buyer's independent decision to remain on the premises andcommence the action for specific performance. It again requires speculation to conclude that thebuyer would have refrained from taking these actions if the additional steps were attempted.Accordingly, the plaintiff's contention that the alleged malpractice resulted in legally cognizabledamages is conclusory and speculative inasmuch as it is premised on decisions that were withinthe sole discretion of the buyer (seeAmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 436 [2007]; Dempster vLiotti, 86 AD3d at 180; Hashmi v Messiha, 65 AD3d at 1195; Wald vBerwitz, 62 AD3d at 787; Holschauer v Fisher, 5 AD3d at 554; Giambrone vBank of N.Y., 253 AD2d 786, 787 [1998]; see also Rudolf v Shayne, Dachs, Stanisci,Corker & Sauer, 8 NY3d at 443; Dupree v Voorhees, 68 AD3d 810, 812-813 [2009]).
In conclusion, as the plaintiff effectively concedes, he is estopped from denying that thedefendants effected a legally valid termination of the contract of sale. To the extent that theallegations in the amended complaint are not barred by the doctrine of judicial estoppel, they failto state a cause of action to recover damages for legal malpractice. Accordingly, the defendants'motion to dismiss the amended complaint was properly granted and the plaintiff's cross motionwas properly denied as academic. Florio, J.P., Chambers, Hall and Miller, JJ., concur.