| Grant v LaTrace |
| 2014 NY Slip Op 05155 [119 AD3d 646] |
| July 9, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Wayne C. Grant, Plaintiff, v Anthony P.LaTrace, Appellants, and Colin Liverpool et al.,Respondents. |
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Lisa L.Shrewsberry and Patrick Carley of counsel), for appellants.
Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Mark K. Anesh andCristina R. Yannucci of counsel), for respondents.
In an action to recover damages for legal malpractice, the defendants Anthony P.LaTrace, Michael E. Glynn, and the Law Offices of Michael S. Lamonsoff, PLLC,appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated April 19,2013, which denied their motion pursuant to CPLR 3211 (a) (7) to dismiss the complaintinsofar as asserted against them.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this instant action against the defendants asserting a singlecause of action sounding in legal malpractice. The defendants Anthony P. LaTrace,Michael E. Glynn, and the Law Offices of Michael S. Lamonsoff, PLLC (hereinaftercollectively the Lamonsoff defendants), moved pursuant to CPLR 3211 (a) (7) to dismissthe complaint insofar as asserted against them, contending that the actions of thedefendants Colin Liverpool and Liverpool Law Office, P.C. (hereinafter together theLiverpool defendants), were the sole proximate cause of the plaintiff's damages becausethey had assumed representation of the plaintiff when there was sufficient opportunity toprotect the plaintiff's rights. The plaintiff did not oppose the motion; however, theLiverpool defendants did. The Supreme Court denied the Lamonsoff defendants' motion.The Lamonsoff defendants appeal.
To establish a cause of action to recover damages for legal malpractice, a plaintiffmust prove (1) that the defendant attorney failed to exercise that degree of care, skill, anddiligence commonly possessed by a member of the legal community, (2) proximatecause, (3) damages, and (4) that the plaintiff would have been successful in theunderlying action had the attorney exercised due care (see Rudolf v Shayne, Dachs,Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Siracusa v Sager, 105 AD3d937, 938 [2013]; Markowitz v Kurzman Eisenberg Corbin Lever & Goodman,LLP, 82 AD3d 719 [2011]). To establish proximate cause, it must bedemonstrated that a plaintiff would have prevailed in the underlying action but for theattorney's negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker &Sauer, 8 NY3d at 442).
[*2] On a motionto dismiss pursuant to CPLR 3211 (a) (7), the facts alleged in the complaint are acceptedas true, the plaintiff is accorded the benefit of every possible favorable inference, and thecourt's function is to determine only whether the facts as alleged fit within anycognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Goldfarb v Schwartz, 26 AD3d462 [2006]). Applying these principles here, we agree that the complaint sufficientlystates a cause of action to recover damages for legal malpractice against the Lamonsoffdefendants.
The Lamonsoff defendants' contention, that the ability of successor counsel, i.e., theLiverpool defendants, to remedy any negligence of the predecessor counsel, i.e., theLamonsoff defendants, during the approximately six-month period that the Liverpooldefendants represented the plaintiff prior to the lapse of the applicable statute oflimitations, is without merit. Unlike the cases relied upon by the Lamonsoff defendants(see Katz v Herzfeld &Rubin, P.C., 48 AD3d 640, 641 [2008]; Ramcharan v Pariser, 20 AD3d 556, 557 [2005]; Perksv Lauto & Garabedian, 306 AD2d 261 [2003]; Albin v Pearson, 289AD2d 272 [2001]; Golden v Cascione, Chechanover & Purcigliotti, 286AD2d 281, 281 [2001]; Kozmol v Law Firm of Allen L. Rothenberg, 241 AD2d484 [1997]), here, the Liverpool defendants could not have moved as of right to remedythe defects in service alleged. The Supreme Court would have had to exercise itsdiscretion in the underlying action to extend the time to serve process (see CPLR306-b, CPLR 2004), and it is pure speculation as to whether the court would havepermitted such late service (see generally Glamm v Allen, 57 NY2d 87 [1982];Lanoce v Anderson, Banks, Curran & Donoghue, 259 AD2d 965 [1999]).Accordingly the Supreme Court properly denied the Lamonsoff defendants' motion.Rivera, J.P., Balkin, Dickerson and Cohen, JJ., concur.