| Citidress II Corp. v Tokayer |
| 2013 NY Slip Op 02369 [105 AD3d 798] |
| April 10, 2013 |
| Appellate Division, Second Department |
| Citidress II Corp., Appellant, v Ira Tokayer,Respondent. (And a Related Action.) |
—[*1] Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Peter T. Shapiro ofcounsel), for respondent.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appealsfrom an order of the Supreme Court, Queens County (Golia, J.), entered August 22,2011, which granted the defendant's motion to dismiss the complaint pursuant to CPLR3211 (a) (1) and (7), and denied its cross motion for leave to amend the complaint.
Ordered that the order is affirmed, with costs.
The Supreme Court should not have directed the dismissal of the causes of actionbased on legal malpractice and breach of contract pursuant to CPLR 3211 (a) (1). Thedocumentary evidence submitted did not resolve all factual issues as a matter of law, anddid not conclusively dispose of the claims asserted by the plaintiff (see Beal Sav. Bank v Sommer,8 NY3d 318, 324 [2007]; AG Capital Funding Partners, L.P. v State St. Bank & TrustCo., 5 NY3d 582, 590-591 [2005]; McCue v County of Westchester, 18 AD3d 830, 831[2005]).
However, the Supreme Court properly determined that the complaint failed to state acause of action. Speculative contentions about what might have happened had thedefendant attorney (hereinafter the defendant) taken a different approach in litigating acase on behalf of the plaintiff were not sufficient to support the plaintiff's allegations oflegal malpractice (see Humbertv Allen, 89 AD3d 804 [2011]; Dempster v Liotti, 86 AD3d 169, 180 [2011]; Wald v Berwitz, 62 AD3d786 [2009]). Since the plaintiff failed to plead specific facts showing causation anddamages, its claims of legal malpractice failed to state a cause of action (see Kuzmin v Nevsky, 74AD3d 896, 898 [2010]; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21AD3d 1082, 1083 [2005]). Moreover, the claims alleging breach of contract alsofailed to state a cause of action. These claims are duplicative of the legal malpracticecause of action because they arise from the same facts as those underlying the legalmalpractice cause of action, and do not allege distinct damages (see Soni v Pryor, 102 AD3d856 [2013]; Ofman vKatz, 89 AD3d 909, 911 [2011]).
The plaintiff's remaining contentions in connection with the defendant's motion arewithout merit.[*2]
Accordingly, the Supreme Court properly grantedthe defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (7).
The Supreme Court properly denied the plaintiff's cross motion pursuant to CPLR3025 (b) for leave to amend the complaint, since the proposed amendment was palpablyinsufficient and patently devoid of merit (see Scott v Fields, 85 AD3d 756, 759 [2011]). Dillon, J.P.,Balkin, Dickerson and Hinds-Radix, JJ., concur.