| Keness v Feldman, Kramer & Monaco, P.C. |
| 2013 NY Slip Op 02376 [105 AD3d 812] |
| April 10, 2013 |
| Appellate Division, Second Department |
| Nancy Keness, Appellant, v Feldman, Kramer &Monaco, P.C., et al., Respondents. |
—[*1] Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Peter T. Shapiro ofcounsel), for respondents Feldman, Kramer & Monaco, P.C., Candace Dellacona, andHerbert Kramer. Housman & Associates, P.C., Tarrytown, N.Y. (Brian J. Divney of counsel), forrespondent Alfreida Kenny.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appealsfrom an order of the Supreme Court, Kings County (Bayne, J.), dated January 4, 2012,which granted the motion of the defendant Alfreida Kenny and the separate motion of thedefendants Feldman, Kramer & Monaco, P.C., Candace Dellacona, and Herbert Kramerpursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against eachof them.
Ordered that the order is affirmed, with one bill of costs payable to the respondentsappearing separately and filing separate briefs.
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to statea cause of action, the court must accept the facts alleged in the pleading as true, accordthe plaintiff the benefit of every possible inference, and determine only whether the factsas alleged fit within any 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 to recover damages for legal malpractice, a plaintiffmust allege: (1) that the attorney failed to exercise the ordinary reasonable skill andknowledge commonly possessed by a member of the legal profession, and (2) that theattorney's breach of the duty proximately caused the plaintiff actual and ascertainabledamages' " (Held vSeidenberg, 87 AD3d 616, 617 [2011], 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]). "'A claim for legal malpractice is viable, despite settlement of the underlying action, if it isalleged that settlement of the action was effectively compelled by the mistakes ofcounsel' " (Tortura v SullivanPapain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005], quotingBernstein v Oppenheim & Co., 160 AD2d 428, 430 [1990]).
Here, the Supreme Court properly granted the motion of the defendant AlfreidaKenny pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted againsther. The complaint failed to allege the existence of an attorney-client relationship,fiduciary relationship, or [*2]even a contractualrelationship between the plaintiff and Kenny (see Cascardo v Stacchini, 100 AD3d 675, 676 [2012]).Consequently, the complaint failed to state any cause of action sounding in either legalmalpractice, breach of fiduciary duty, or breach of contract insofar as asserted againstKenny.
The Supreme Court also properly granted the separate motion of the defendantsFeldman, Kramer & Monaco, P.C., Candace Dellacona, and Herbert Kramer (hereinaftercollectively the Feldman defendants) pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint insofar as asserted against them.
Viewing the complaint in the light most favorable to the plaintiff (see Leon vMartinez, 84 NY2d at 87-88), it fails to plead specific factual allegationsdemonstrating that, but for the Feldman defendants' alleged negligence, there would havebeen a more favorable outcome in the underlying proceeding or that the plaintiff wouldnot have incurred any damages (see Tortura v Sullivan Papain Block McGrath &Cannavo, P.C., 21 AD3d at 1083; Holschauer v Fisher, 5 AD3d 553 [2004]; Rau vBorenkoff, 262 AD2d 388 [1999]). The complaint also failed to sufficiently allegethat the subject settlement entered into by the plaintiff was "effectively compelled by themistakes of counsel" (Tortura v Sullivan Papain Block McGrath & Cannavo,P.C., 21 AD3d at 1083). Accordingly, the complaint failed to state a cause of actionto recover damages for legal malpractice insofar as asserted against the Feldmandefendants.
In addition, the causes of action alleging breach of fiduciary duty and breach ofcontract insofar as asserted against the Feldman defendants are duplicative of the legalmalpractice cause of action, since they arise from the same facts as those underlying thelegal malpractice cause of action, and do not allege distinct damages (see Tsafatinos v Lee DavidAuerbach, P.C., 80 AD3d 749, 750 [2011]; Financial Servs. Veh. Trust v Saad, 72 AD3d 1019, 1020[2010]). Eng, P.J., Dickerson, Lott and Sgroi, JJ., concur.