| Benishai v Epstein |
| 2014 NY Slip Op 02404 [116 AD3d 726] |
| April 9, 2014 |
| Appellate Division, Second Department |
| Jack Benishai, Appellant, v Charles I. Epstein,Esq., Respondent. |
—[*1] Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Lisa L. Shrewsberryof counsel) for respondent.
In an action to recover damages for legal malpractice, the plaintiff appeals from anorder of the Supreme Court, Queens County (Sampson, J.), entered September 11, 2012,which granted the defendant's motion pursuant to CPLR 3211 (a) to dismiss thecomplaint.
Ordered that the order is affirmed, with costs.
In 2004, the plaintiff, as attorney-in-fact for his mother, Bella Benishai (hereinafterBella), commenced an action in the Supreme Court, New York County (hereinafter theNew York County action), against his brother, David Benishai (hereinafter David). Theplaintiff, inter alia, alleged that David had mismanaged the corporate funds of IlanProperties, Inc. (hereinafter Ilan), a corporation in which, at that time, Bella and Davidwere each 50% shareholders. Ilan's primary assets were two residential properties locatedon West 76th Street in Manhattan. After commencing the New York County actionagainst David, the plaintiff retained the defendant attorney to represent Bella, but Belladied during the pendency of that action. Nonetheless, the plaintiff apparently directed thedefendant to continue the prosecution of the New York County action against David. OnMarch 31, 2009, the plaintiff, David, Ilan, and Bella's estate entered into a writtensettlement agreement, pursuant to which the plaintiff became a 50% shareholder in Ilanand agreed to release David from any claims for costs, taxes, and penalties.
In October 2011, the plaintiff commenced this legal malpractice action against thedefendant, alleging, among other things, that the defendant failed to undertake ananalysis of Ilan's financial status in order to determine the plaintiff's exposure to taxliabilities, fines, penalties, and other charges. In April 2012, the defendant movedpursuant to CPLR 3211 (a) to dismiss the complaint on the ground, inter alia, that thecomplaint failed to state a cause of action. The Supreme Court granted the motion,concluding that the complaint failed to state a cause of action (see CPLR 3211[a] [7]).
To recover damages in a legal malpractice action, a plaintiff must establish "that theattorney 'failed to exercise the ordinary reasonable skill and knowledge commonlypossessed by a [*2]member of the legal profession' andthat the attorney's breach of this duty proximately caused plaintiff to sustain actual andascertainable damages" (Rudolfv Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quotingMcCoy v Feinman, 99 NY2d 295, 301, 302 [2002]; see Held v Seidenberg, 87AD3d 616, 617 [2011]; Kennedy v H. Bruce Fischer, Esq., P.C., 78AD3d 1016, 1018 [2010]). "To establish causation, a plaintiff must show that he or shewould have prevailed in the underlying action or would not have incurred any damages,but for the lawyer's negligence" (Rudolf v Shayne, Dachs, Stanisci, Corker &Sauer, 8 NY3d at 442). " 'A claim for legal malpractice is viable, despite settlementof the underlying action, if it is alleged that settlement of the action was effectivelycompelled by the mistakes of counsel' " (Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21AD3d 1082, 1083 [2005], quoting Bernstein v Oppenheim & Co., 160AD2d 428, 430 [1990]). Nonetheless, a plaintiff's conclusory allegations that merelyreflect a subsequent dissatisfaction with the settlement, or that the plaintiff would be in abetter position but for the settlement, without more, do not make out a claim of legalmalpractice (see Boone vBender, 74 AD3d 1111, 1113 [2010]; Holschauer v Fisher, 5 AD3d 553, 554 [2004]).
"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' " (Sierra Holdings, LLC v Phillips, Weiner, Quinn, Artura & Cox,112 AD3d 909, 910 [2013], quoting Leon v Martinez, 84 NY2d 83, 87-88[1994]). A complaint in a legal malpractice action will be dismissed pursuant to CPLR3211 (a) (7) where "it fails to plead specific factual allegations demonstrating that, butfor the . . . defendant['s] alleged negligence, there would have been a morefavorable outcome in the underlying proceeding or that the plaintiff would not haveincurred any damages" (Kenessv Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813 [2013]). Here,viewing the complaint in the light most favorable to the plaintiff (see Leon vMartinez, 84 NY2d at 87-88), it failed to plead specific factual allegationsdemonstrating that, but for the defendant's alleged negligence, there would have been amore favorable outcome in the underlying action or that the plaintiff would not haveincurred any damages (id.; Tortura v Sullivan Papain Block McGrath &Cannavo, P.C., 21 AD3d at 1083). Moreover, nowhere does the complaint allegethat the settlement was compelled by the mistakes of counsel.
Accordingly, the Supreme Court properly determined that the complaint failed tostate a cause of action to recover damages for legal malpractice, and properly granted thedefendant's motion to dismiss the complaint.
The parties' remaining contentions are without merit. Rivera, J.P., Dillon, Roman andMiller, JJ., concur.