| Rosenbaum v Sheresky Aronson Mayefsky & Sloan, LLP |
| 2012 NY Slip Op 07651 [100 AD3d 731] |
| November 14, 2012 |
| Appellate Division, Second Department |
| Carolyn Donovan Rosenbaum, Appellant, v ShereskyAronson Mayefsky & Sloan, LLP, et al., Defendants, and Mayerson, Stutman, Abramowitz, LLP,et al., Respondents. |
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Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Lisa Shrewsberry ofcounsel), for respondents.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals, aslimited by her brief, from so much of an order of the Supreme Court, Westchester County(Smith, J.), dated August 17, 2010, as granted that branch of the motion of the defendantsMayerson, Stutman, Abramowitz, LLP, and Alton L. Abramowitz which was pursuant to CPLR3211 (a) (7) to dismiss the causes of action alleging legal malpractice and breach of fiduciaryduty insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action against two sets of attorneys who represented her in asharply contested matrimonial action which terminated in November 2008 pursuant to aseparation agreement (hereinafter the separation agreement). As alleged in the amendedcomplaint, the plaintiff was represented by the defendant Alton L. Abramowitz and two othermembers of the defendant firm Sheresky, Aronson, Mayefsky & Sloan, LLP (hereinafter theSheresky Firm), beginning in February 2006. When Abramowitz joined the defendant firmMayerson, Stutman, Abramowitz, LLP (hereinafter together the Mayerson Firm defendants), inor around August 2006, he continued to represent the plaintiff pursuant to a retainer agreementwith that firm, as did the Sheresky Firm. According to the allegations in the amended complaint,the Mayerson Firm defendants' representation of the plaintiff continued until August 25, 2008,while the Sheresky Firm's representation of the plaintiff continued until approximately February23, 2009.
The amended complaint alleged, inter alia, that the Sheresky Firm and the Mayerson Firmdefendants negligently represented the plaintiff inasmuch as they failed to enforce previousfavorable determinations in the form of pendente lite support, failed to enforce her rights toseparate property under a prenuptial agreement, failed to secure her rights in the value of herformer husband's medical licenses, and excessively billed her, which resulted in a "wholly andcompletely inadequate" separation agreement.[*2]
"On a motion to dismiss the complaint pursuant to CPLR3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberalconstruction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefitof every possible inference, and determine only whether the facts as alleged fit within anycognizable legal theory" (Breytman vOlinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84NY2d 83, 87 [1994]; Rietschel vMaimonides Med. Ctr., 83 AD3d 810 [2011]). Where evidentiary material is submittedand considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and themotion is not converted into one for summary judgment, the question becomes whether theplaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has beenshown that a material fact as claimed by the plaintiff to be one is not a fact at all and that nosignificant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer vGinzburg, 43 NY2d 268, 274-275 [1977]; Rietschel v Maimonides Med. Ctr., 83AD3d at 810).
" 'To state a cause of action to recover damages for legal malpractice, a plaintiff must allege:(1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonlypossessed by a member of the legal profession; and (2) that the attorney's breach of the dutyproximately caused the plaintiff actual and ascertainable damages' " (Held v Seidenberg, 87 AD3d 616,617 [2011] [some internal quotation marks omitted], quoting Dempster v Liotti, 86 AD3d 169 [2011]). To establish causation, aplaintiff must show that he or she would have prevailed in the underlying action or would nothave incurred any damages, but for the attorney's negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d438, 441 [2007]).
Here, the Mayerson Firm defendants demonstrated that the plaintiff's allegation in theamended complaint that they continued to provide her with legal representation until August 25,2008, was "not a fact at all" (Guggenheimer v Ginzburg, 43 NY2d at 275). The MayersonFirm defendants tendered evidentiary material conclusively and indisputably demonstrating thattheir relationship with the plaintiff ended in March 2007, which was 19 months before theseparation agreement was executed. In the interim, successor counsel, the Sheresky Firm,negotiated the separation agreement, which the plaintiff executed in November 2008. Underthese circumstances, the Mayerson Firm defendants could not have been a proximate cause of theallegedly "wholly inadequate" separation agreement (see Marshel v Hochberg, 37 AD3d 559 [2007]; Perks v Lauto &Garabedian, 306 AD2d 261, 261-262 [2003]; Albin v Pearson, 289 AD2d 272[2001]). The remaining allegations of legal malpractice against the Mayerson Firm defendantsare conclusory, and the plaintiff's affidavit failed to remedy those defects (see Hashmi v Messiha, 65 AD3d1193, 1195 [2009]; Parola, Gross &Marino, P.C. v Susskind, 43 AD3d 1020, 1022 [2007]; Hart v Scott, 8 AD3d 532 [2004]).Therefore, the Supreme Court properly granted that branch of the Mayerson Firm defendants'motion which was to dismiss the cause of action alleging legal malpractice insofar as assertedagainst them.
The Supreme Court properly granted dismissal of the cause of action alleging breach offiduciary duty insofar as asserted against the Mayerson Firm defendants, as it was duplicative ofthe cause of action alleging legal malpractice (see Rock City Sound, Inc. v Bashian & Farber, LLP, 74 AD3d1168, 1171 [2010]). Florio, J.P., Dickerson, Chambers and Cohen, JJ., concur.