| Sierra Holdings, LLC v Phillips, Weiner, Quinn, Artura &Cox |
| 2013 NY Slip Op 08612 [112 AD3d 909] |
| December 26, 2013 |
| Appellate Division, Second Department |
| Sierra Holdings, LLC, et al., Appellants, v Phillips,Weiner, Quinn, Artura & Cox, et al., Respondents. |
—[*1] Lewis, Brisbois Bisgaard & Smith LLP, New York, N.Y. (Mark K. Anesh and PaulaGilbert of counsel), for respondents.
In an action to recover damages for legal malpractice, breach of fiduciary duty, andbreach of contract, the plaintiffs appeal from an order of the Supreme Court, NassauCounty (Parga, J.), entered May 14, 2012, which granted the defendants' motion todismiss the complaint, inter alia, pursuant to CPLR 3211 (a) (7).
Ordered that the order is affirmed, with costs.
In this action, the plaintiffs, as holders of a second mortgage on the subject property,alleged that the defendants were negligent in failing to notify them of a scheduledforeclosure sale in an action commenced by the first mortgagee, and that, if they hadbeen notified, they would have appeared in the sale, purchased the property, and resoldthe property in an amount which would have enabled them to recoup some or all of theamount of their second mortgage, which was extinguished as a result of the sale whichtook place without them. The property was purchased by the first mortgagee, and resoldsix months later for an amount which was less than the amount owed on the firstmortgage at the time of the foreclosure sale.
In determining a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), thecourt must "accept the facts as alleged in the complaint as true, accord plaintiffs thebenefit of every possible favorable inference, and determine only whether the facts asalleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83,87-88 [1994]). The elements of a cause of action sounding in legal malpractice are thatthe attorney failed to exercise the ordinary reasonable skill and knowledge commonlypossessed by a member of the legal profession and that the attorney's breach of this dutyproximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs,Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). The plaintiff must pleadactual ascertainable damages resulting from the attorney's negligence (see Dempster v Liotti, 86AD3d 169, 177 [2011]).
Here, the Supreme Court properly determined that the complaint failed to state acause of action to recover damages for legal malpractice. The plaintiffs' allegationsregarding the consequences and damages flowing from the defendant's alleged failure tonotify them of the scheduled foreclosure sale were too speculative to permit a trier of factto find that such failure [*2]caused actual andascertainable damages (seeHashmi v Messiha, 65 AD3d 1193 [2009]; Wald v Berwitz, 62 AD3d 786 [2009]).
The causes of action sounding in breach of fiduciary duty and breach of contract alsowere properly dismissed, as they were based on the same facts underlying the legalmalpractice cause of action and did not allege distinct damages (see Town of N. Hempstead vWinston & Strawn, LLP, 28 AD3d 746 [2006]).
The plaintiffs' remaining contentions are without merit. Mastro, J.P., Lott, Austin andHinds-Radix, JJ., concur.