| Schiller v Bender, Burrows & Rosenthal, LLP |
| 2014 NY Slip Op 02422 [116 AD3d 756] |
| April 9, 2014 |
| Appellate Division, Second Department |
| Gerard M. Schiller, M.D., Appellant, v Bender,Burrows and Rosenthal, LLP, et al., Respondents. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Joan Martino Faleyof counsel), for respondents Bender, Burrows and Rosenthal, LLP, Bender, Rosenthal,Isaacs & Richter, LLP, Susan Bender, and Michael Etzrodt. Hinshaw & Culbertson, LLP, New York, N.Y. (Annmarie D'Amour and PhilipTouitou of counsel), for respondents Advocate & Lichtenstein, LLP, and JasonAdvocate.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals,as limited by his brief, from so much of a judgment of the Supreme Court, WestchesterCounty (O. Bellantoni, J.), entered May 25, 2012, as, upon an order of the same courtdated April 25, 2012, among other things, granting those branches of the motion of thedefendants Bender, Burrows and Rosenthal, LLP, Bender, Rosenthal Isaacs & Richter,LLP, Susan Bender, and Michael Etzrodt, and those branches of the separate motion ofthe defendants Advocate & Lichtenstein, LLP, and Jason Advocate, which were pursuantto CPLR 3211 (a) (1) and (7) to dismiss the first, second, fourth, fifth, and sixth causes ofaction insofar as asserted against each of them, is in favor of the defendants and againsthim, dismissing those causes of action.
Ordered that the judgment is affirmed insofar as appealed from, with one bill of coststo the defendants appearing separately and filing separate briefs.
The plaintiff commenced this action against Bender, Burrows and Rosenthal, LLP,Bender, Rosenthal Isaacs & Richter, LLP, Susan Bender, and Michael Etzrodt(hereinafter collectively the Bender defendants), who represented him in a matrimonialaction, and Advocate & Lichtenstein, LLP, and Jason Advocate (hereinafter together theAdvocate defendants), who represented him in a related action against his former wifeconcerning the termination of their joint medical practice. In April 2008, the plaintiff andhis former wife entered into a stipulation of settlement (hereinafter the settlement) withregard to both underlying actions. In the complaint, the plaintiff alleged, inter alia, thatthe Bender defendants and the Advocate defendants coerced him into settling, and thatthe settlement was deficient in several respects. The first and second causes of actionalleged violations of Judiciary Law § 487, the fourth cause of action alleged legalmalpractice, the fifth cause of action alleged breach of fiduciary duty, and the sixth causeof action alleged breach of contract. The Supreme Court, inter alia, dismissed thosecauses of action.[*2]
A motion to dismiss on the basis of CPLR 3211(a) (1) should be granted only where the documentary evidence that forms the basis ofthe defense is such that it refutes the plaintiff's factual allegations or conclusivelydisposes of the plaintiff's claims as a matter of law (see Goshen v Mutual Life Ins.Co. of N.Y., 98 NY2d 314, 326 [2002]; Held v Kaufman, 91 NY2d 425,430-431 [1998]). On a motion to dismiss pursuant to CPLR 3211 (a) (7), the courtshould accept the facts alleged in the complaint as true and afford the proponent thebenefit of every possible favorable inference, and determine only whether the facts asalleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83,87 [1994]; Baron vGalasso, 83 AD3d 626, 628 [2011]).
"In an action to recover damages for legal malpractice, a plaintiff must demonstratethat the attorney 'failed to exercise the ordinary reasonable skill and knowledgecommonly possessed by a member of the legal profession' and that the attorney's breachof this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci,Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman,99 NY2d 295, 301-302 [2002]). Furthermore, "[t]o establish causation, a plaintiff mustshow that he or she would have prevailed in the underlying action or would not haveincurred 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 settlement of the underlying action, if it is alleged that settlement of the actionwas effectively compelled by the mistakes of counsel" (Tortura v Sullivan Papain BlockMcGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005]).
Here, the Supreme Court properly determined that the Bender defendants and theAdvocate defendants were entitled to dismissal of the legal malpractice cause of actionpursuant to CPLR 3211 (a) (1) and (7). Their documentary evidence, which comprisedthe transcript of the court proceedings setting forth the terms of the settlement of theunderlying actions, conclusively established that the plaintiff was not coerced intosettling (see Pacella vWhiteman Osterman & Hanna, 14 AD3d 545, 545-546 [2005]; Laruccia vForchelli, Curto, Schwartz, Mineo, Carlino & Cohn, 295 AD2d 321, 322 [2002]).The plaintiff's allegations that he was coerced into settling the litigation were utterlyrefuted by his own admissions during the settlement proceeding that he had discussed theterms of the settlement with his attorneys, that he understood the settlement terms andhad no questions about them, that he was entering into the settlement freely, of his ownvolition, and without undue influence or coercion, and that he was satisfied with his legalrepresentation (see Boone vBender, 74 AD3d 1111, 1113 [2010]). Additionally, the Supreme Courtproperly determined that the remaining allegations in the complaint were insufficient toshow that the plaintiff stated a cause of action to recover damages for legal malpractice(see Bua v Purcell & Ingrao,P.C., 99 AD3d 843, 848 [2012]; Dempster v Liotti, 86 AD3d 169, 176 [2011]; Wald v Berwitz, 62 AD3d786, 787 [2009]). The plaintiff's allegations amounted to nothing more thanhindsight criticism of counsels' reasonable course of action (see Dweck Law Firm vMann, 283 AD2d 292, 293 [2001]). "The fact that the plaintiff subsequently wasunhappy with the settlement obtained . . . does not rise to the level of legalmalpractice" (Holschauer vFisher, 5 AD3d 553, 554 [2004]). Moreover, the plaintiff failed to plead specificfactual allegations showing that, had he not settled, he would have obtained a morefavorable outcome (see Kenessv Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813 [2013]; Tortura vSullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d at 1083; DweckLaw Firm v Mann, 283 AD2d at 293; Rau v Borenkoff, 262 AD2d 388, 389[1999]). Accordingly, the Supreme Court properly granted those branches of the separatemotions of the Bender defendants and the Advocate defendants which were to dismissthe legal malpractice cause of action pursuant to both CPLR 3211 (a) (1) and (7).
Contrary to the plaintiff's contentions, the Supreme Court properly dismissed thefifth and sixth causes of action alleging, respectively, breach of fiduciary duty and breachof contract. Both of these causes of action are predicated upon the plaintiff's allegationsthat the defendants deviated from accepted standards of legal practice in advising himwith regard to the settlement, the same allegations which are insufficient to state a causeof action to recover damages for legal malpractice. Accepting the allegations as true andaffording the plaintiff the benefit of every possible favorable inference (see Leon vMartinez, 84 NY2d at 87), the plaintiff failed to state a cause of action for breach offiduciary duty (see Rut v YoungAdult Inst., Inc., 74 AD3d 776, 777 [2010]), and for breach of contract (seeSantulli v Englert, Reilly & McHugh, 78 NY2d 700 [1992]; Sierra Holdings, LLC v Phillips,Weiner, Quinn, Artura & Cox, 112 AD3d 909 [2013]; Palmieri v Biggiani, 108 AD3d604, [*3]608 [2013]; cf. Mecca v Shang, 258AD2d 569, 570 [1999]).
Additionally, the Supreme Court properly dismissed the first and second causes ofaction, which alleged violations of Judiciary Law § 487, since the first cause ofaction did not allege sufficient facts to demonstrate an intent to deceive the court or anyparty, while the second cause of action, based on allegations that the defendants engagedin an extreme and chronic pattern of legal delinquency, is not legally recognized (see Dupree v Voorhees, 102AD3d 912, 913 [2013]; Agostini v Sobol, 304 AD2d 395, 396 [2003];Goldner v Sullivan, Gough, Skipworth, Summers & Smith, 105 AD2d 1149,1151 [1984]).
Accordingly, we affirm the judgment insofar as appealed from. Skelos, J.P.,Chambers, Hall and Miller, JJ., concur.