| Siracusa v Sager |
| 2013 NY Slip Op 02563 [105 AD3d 937] |
| April 17, 2013 |
| Appellate Division, Second Department |
| Jack Siracusa, Appellant, v Audrey Sager et al.,Respondents. |
—[*1] Garcia & Stallone, Deer Park, N.Y. (Eric N. Bailey of counsel), for respondentsAudrey Sager, Steven Gellerman, and Sager & Gellerman, Esq. Richard M. Gordon & Associates, P.C., Huntington, N.Y., for respondents JeffreyHorn, Horn & Horn, and Horn Horn & Ramme.
In an action to recover damages for legal malpractice, the plaintiff appeals from anorder of the Supreme Court, Suffolk County (Cohalan, J.), dated August 3, 2011, whichgranted the motion of the defendants Jeffrey Horn, Horn & Horn, and Horn Horn &Ramme which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the amendedcomplaint insofar as asserted against them, granted the separate motion of the defendantsAudrey Sager, Steven Gellerman, and Sager & Gellerman, Esq., which was pursuant toCPLR 3211 (a) (7) to dismiss the amended complaint insofar as asserted against them,and denied, as academic, his cross motion pursuant to CPLR 3211 (d) to stay the motionspending further discovery.
Ordered that the order is affirmed, with one bill of costs.
The defendants Jeffrey Horn, Horn & Horn, and Horn Horn & Ramme (hereinaftercollectively the Horn defendants) moved to dismiss the complaint insofar as assertedagainst them pursuant to CPLR 3211 (a) (1) on the ground that they had a defensefounded on documentary evidence, and pursuant to CPLR 3211 (a) (7) on the groundthat the complaint failed to state a cause of action to recover damages for legalmalpractice. The Supreme Court granted the motion on both grounds.
Initially, we agree with the plaintiff's contention that the Horn defendants did notestablish their entitlement to dismissal of the complaint insofar as asserted against thempursuant to CPLR 3211 (a) (1). "A motion to dismiss a complaint pursuant to CPLR3211 (a) (1) will be granted only if the documentary evidence submitted by the defendantutterly refutes the factual allegations of the complaint and conclusively establishes adefense to the claims as a matter of law" (Bodden v Kean, 86 AD3d 524, 526 [2011]; see Goshenv Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Rietschel v Maimonides Med.Ctr., 83 AD3d 810, 810 [2011]). Here, the evidence submitted by the Horndefendants [*2]either was not documentary within themeaning of CPLR 3211 (a) (1) or failed to utterly refute the plaintiff's allegations andconclusively establish a defense as a matter of law (see Rietschel v Maimonides Med.Ctr., 83 AD3d at 811; Fontanetta v John Doe 1, 73 AD3d 78, 84-85 [2010];see also Bodden v Kean, 86 AD3d at 526).
However, the Supreme Court correctly granted the Horn defendants' motion todismiss the complaint insofar as asserted against them to the extent that it was predicatedon CPLR 3211 (a) (7), as well as the separate motion of the defendants Audrey Sager,Steven Gellerman, and Sager & Gellerman, Esq., to dismiss the complaint insofar asasserted against them pursuant to CPLR 3211 (a) (7).
"On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure tostate a cause of action, the court must afford the pleading a liberal construction, accept allfacts as alleged in the pleading to be true, accord the plaintiff the benefit of everypossible inference, and determine only whether the facts as alleged fit within anycognizable legal theory" (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704[2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]; Rietschel v Maimonides Med.Ctr., 83 AD3d 810 [2011]).
To succeed in a legal malpractice action, a plaintiff must prove that his or herattorney failed to exercise that degree of care, skill, and diligence commonly possessedby a member of the legal community, and that this failure proximately caused theplaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d438, 442 [2007]; Markowitz v Kurzman Eisenberg Corbin Lever & Goodman,LLP, 82 AD3d 719 [2011]; Frederick v Meighan, 75 AD3d 528, 531 [2010]; Katz v Herzfeld & Rubin,P.C., 48 AD3d 640, 640-641 [2008]).
Here, the plaintiff's allegations with respect to whether the defendants exercised thedegree of care, skill, and diligence commonly possessed by a member of the legalcommunity amounted to no more than his dissatisfaction with their "strategic choices"and, thus, as a matter of law, did not support a malpractice claim (Albanese v Hametz, 4 AD3d379, 380 [2004]; see Rosner v Paley, 65 NY2d 736, 738 [1985];Bernstein v Oppenheim & Co., 160 AD2d 428, 430-431 [1990]; cf.Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562[2003]). In any event, the complaint fails to set forth facts sufficient to allege that thedefendants' purported negligence proximately caused the plaintiff to sustain actual andascertainable damages (seeWald v Berwitz, 62 AD3d 786 [2009]).
In light of the Supreme Court's proper determination that the complaint failed to statea cause of action, the Supreme Court correctly denied the plaintiff's cross motion asacademic. Angiolillo, J.P., Chambers, Roman and Miller, JJ., concur. [Prior CaseHistory: 2011 NY Slip Op 32244(U).]