| Snyder v Brown Chiari, LLP |
| 2014 NY Slip Op 02363 [116 AD3d 1116] |
| April 3, 2014 |
| Appellate Division, Third Department |
| Anna M. Snyder, Appellant, v Brown Chiari, LLP, et al.,Respondents. |
—[*1] Connors & Vilardo, LLP, Buffalo (Randall D. White of counsel), forrespondents.
Lahtinen, J. Appeal from an order of the Supreme Court (Sherman, J.), enteredAugust 13, 2012 in Schuyler County, which granted defendants' motion to dismiss thecomplaint.
In late 2002, plaintiff underwent a surgical procedure and shortly thereafterdeveloped complications that resulted in three further surgeries, none of which wassuccessful. She retained defendants, which commenced a medical malpractice action inMarch 2004 against the physician who had performed the initial surgery as well as thatphysician's partnership. In late February 2007, and with a trial date scheduled for earlyMarch 2007, defendants attempted to withdraw as counsel to plaintiff because, amongother things, an expert had not been retained. Supreme Court (Falvey, J.) denieddefendants' motion to withdraw as counsel to plaintiff, granted a motion by thedefendants in the medical malpractice action to preclude plaintiff from offering experttestimony at trial and, because a prima facie case could not be established without expertproof, dismissed the medical malpractice action. When plaintiff attempted to obtain herfile from defendants, Supreme Court permitted a lien for defendants' disbursements of$7,500.45.
Plaintiff commenced the instant action in early 2009 alleging, among other things,legal malpractice. Defendants answered and eventually made a motion to dismisspursuant to CPLR 3211 asserting various grounds including collateral estoppel andfailure to state a cause of action. Supreme Court (Sherman, J.) found no merit in thecollateral estoppel argument; however, the court determined that plaintiff failed toestablish the legal malpractice claim because of a lack of proof that she would have beensuccessful in the underlying medical malpractice action. Finding the remaining causes ofaction duplicative of the legal malpractice claim, the court dismissed the [*2]complaint. Plaintiff appeals.
Plaintiff stated a cause of action for legal malpractice. Elements of such a cause ofaction include "establish[ing] both that the defendant attorney failed to exercise theordinary reasonable skill and knowledge commonly possessed by a member of the legalprofession which results in actual damages to a plaintiff, and that the plaintiff wouldhave succeeded on the merits of the underlying action 'but for' the attorney's negligence"(AmBase Corp. v Davis Polk &Wardwell, 8 NY3d 428, 434 [2007] [citations omitted]; accord Alaimo v McGeorge,69 AD3d 1032, 1034 [2010]). In the procedural context of a motion to dismiss forfailure to state a cause of action, "the court must afford the pleadings a liberalconstruction, take the allegations of the complaint as true and provide plaintiff the benefitof every possible inference" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19[2005]). "Whether the plaintiff will ultimately be successful in establishing thoseallegations is not part of the calculus" (Landon v Kroll Lab. Specialists, Inc., 22 NY3d 1, 6 [2013][internal quotation marks and citations omitted]) and "a court may freely consideraffidavits submitted by the plaintiff to remedy any defects in the complaint" (Leon vMartinez, 84 NY2d 83, 88 [1994]).
Here, plaintiff submitted, among other things, an affidavit and attached memorandumfrom a physician licensed in New York. This physician had been consulted by defendantsin 2003, and he produced his memorandum from such time which set forth in ampledetail for purposes of opposing a motion to dismiss that plaintiff's surgeon deviated fromappropriate care. His affidavit reaffirmed that he believed there was malpractice in thetreatment of plaintiff by her surgeon and, further, stated that he had been available totestify at the scheduled 2007 trial, but was never contacted by defendants. Such proof,together with the detailed allegations in the complaint, state a cause of action.
Defendants urge as an alternative ground for affirmance the collateral estoppelargument that they unsuccessfully asserted before Supreme Court. They premise thisargument upon the fact that Supreme Court permitted their lien on plaintiff's file and theline of cases which hold that "where a client does not prevail in an action brought bycounsel for the value of professional services, a subsequent action by the client formalpractice is barred by collateral estoppel" (Thruway Invs. v O'Connell & Aronowitz, 3 AD3d 674,676 [2004]; see e.g. Zito vFischbein Badillo Wagner Harding, 80 AD3d 520, 521 [2011]). Here, at theappearance regarding the lien on the file, plaintiff was, as stated by Supreme Court in itsdecision, "expressly prevented by [Supreme] Court from asserting any claims relative tothe actual services performed by [d]efendants, and strictly limited to a discussion of theaccuracy of the amount of the disbursements made by [d]efendants on her behalf." Weagree with Supreme Court's characterization of the lien dispute and, under suchcircumstances, further agree with Supreme Court that plaintiff did not previously have afull and fair opportunity to litigate the issue of whether defendants were negligent so asto support invoking collateral estoppel (see generally Buechel v Bain, 97 NY2d295, 303-304 [2001], cert denied 535 US 1096 [2002]). The remainingarguments, to the extent properly before us, are academic or without merit.
Peters, P.J., Rose and Egan Jr., JJ., concur. Ordered that the order is reversed, on thelaw, with costs, and motion denied.