| Siwiec v Rawlins |
| 2013 NY Slip Op 00903 [103 AD3d 703] |
| February 13, 2013 |
| Appellate Division, Second Department |
| Danuta Siwiec, Appellant, v Gary N. Rawlins etal., Respondents. |
—[*1] Furman Kornfeld & Brennan, LLP, New York, N.Y. (Joshua B. Sandberg ofcounsel), for respondents Gary N. Rawlins and The Rawlins Law Firm, PLLC. Craig F. Wilson, New York, N.Y., respondent pro se.
In an action to recover damages for legal malpractice, the plaintiff appeals from anorder of the Supreme Court, Kings County (Martin, J.), dated December 22, 2011, whichgranted the motion of the defendants Gary N. Rawlins and the Rawlins Law Firm, PLLC,pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them,denied her cross motion pursuant to CPLR 3215 (a) for leave to enter a default judgmentagainst the defendant Craig F. Wilson, and granted the cross motion of the defendantCraig F. Wilson pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar asasserted against him.
Ordered that the order is affirmed, with one bill of costs payable to the defendantsappearing separately and filing separate briefs.
"When a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), thestandard is whether the pleading states a cause of action, not whether the proponent ofthe pleading has a cause of action" (Sokol v Leader, 74 AD3d 1180, 1180-1181 [2010]). Indetermining such a motion, the court must "accept the facts as alleged in the complaint astrue, accord plaintiffs the benefit of every possible favorable inference, and determineonly whether the facts as alleged fit within any cognizable legal theory" (Leon vMartinez, 84 NY2d 83, 87-88 [1994]).
" 'To state a cause of action to recover damages for legal malpractice, a plaintiff mustallege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledgecommonly possessed by a member of the legal profession; and (2) that the attorney'sbreach of the duty proximately caused the plaintiff actual and ascertainable damages' "(Held v Seidenberg, 87AD3d 616, 617 [2011] [internal quotation marks omitted], quoting Dempster v Liotti, 86 AD3d169, 176 [2011]). To establish causation, a plaintiff must show that he or she wouldhave prevailed in the underlying action or would not have incurred any damages but forthe attorney's negligence (seeRudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 441 [2007]; Rosenbaum v Sheresky AronsonMayefsky & Sloan, LLP, 100 AD3d 731 [2012]). [*2]Conclusory allegations of damages or injuries which arepredicated on speculation are insufficient (see Wald v Berwitz, 62 AD3d 786, 787 [2009]).
Here, the complaint fails to allege facts sufficient to establish that the underlyingaction would have been successful or that the defendants proximately caused the plaintiffto sustain damages (seeHallman v Kantor, 72 AD3d 895, 897 [2010]; Wald v Berwitz, 62AD3d at 787; Simmons vEdelstein, 32 AD3d 464, 465-466 [2006]). Accordingly, the Supreme Courtproperly granted the motion of the defendants Gary N. Rawlins and the Rawlins LawFirm, PLLC, and the cross motion of the defendant Craig F. Wilson, pursuant to CPLR3211 (a) (7) to dismiss the complaint insofar as asserted against them.
Further, the Supreme Court providently exercised its discretion in denying theplaintiff's cross motion pursuant to CPLR 3215 (a) for leave to enter a default judgmentagainst the defendant Craig F. Wilson (see Feder v Eline Capital Corp., 80 AD3d 554 [2011]; Giha v Giannos Enters., Inc.,69 AD3d 564, 565 [2010]).
The plaintiff's remaining contentions are without merit. Dillon, J.P., Angiolillo,Dickerson and Hinds-Radix, JJ., concur.