| Mackey Reed Elec., Inc. v Morrone & Assoc.,P.C. |
| 2015 NY Slip Op 01426 [125 AD3d 822] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1]
| Mackey Reed Electric, Inc., et al.,Appellants, v Morrone & Associates, P.C., et al.,Respondents. |
King & King, LLP, Central Islip, N.Y. (Karl Silverberg of counsel), forappellants.
Melito & Adolfsen, P.C., New York, N.Y. (John H. Somoza and Kira Tsiring ofcounsel), for respondents.
In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal,as limited by their brief, from so much of an order of the Supreme Court, Queens County(Agate, J.), entered January 10, 2013, as granted those branches of the defendants'motion which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the causes of actionalleging legal malpractice, fraud, breach of fiduciary duty, and conversion.
Ordered that the order is affirmed insofar as appealed from, with costs.
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to statea cause of action, the court must accept the facts alleged in the pleading as true, accordthe plaintiff the benefit of every possible favorable inference, and determine onlywhether the facts as alleged fit within any cognizable legal theory (see Goshen vMutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez,84 NY2d 83, 87 [1994]). "To state a cause of action to recover damages for legalmalpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinaryreasonable skill and knowledge commonly possessed by a member of the legalprofession; and (2) that the attorney's breach of the duty proximately caused the plaintiffactual and ascertainable damages" (Held v Seidenberg, 87 AD3d 616, 617 [2011] [internalquotation marks omitted]). To establish causation, a plaintiff must show that he or shewould have prevailed in the underlying action or would not have incurred any damagesbut for the attorney's negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8NY3d 438, 442 [2007]). A plaintiff is not obligated to show, on a motion to dismiss,that it actually sustained damages. It need only plead allegations from which damagesattributable to the defendant's malpractice might be reasonably inferred (see Fielding v Kupferman, 65AD3d 437, 442 [2009]; Kempf v Magida, 37 AD3d 763, 764 [2007]).
Here, the Supreme Court properly granted that branch of the defendants' motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging legalmalpractice. Accepting as true the facts alleged in the complaint, and according theplaintiffs the benefit of every favorable inference (see Leon v Martinez, 84 NY2dat 87-88), it fails to plead specific factual allegations demonstrating that, but for thedefendants' alleged negligence, there would have been a more favorable outcome in theunderlying proceedings or that the plaintiffs would not have incurred any damages (see Keness v Feldman, Kramer& Monaco, P.C., 105 AD3d 812 [2013]; Tortura v Sullivan Papain BlockMcGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005]; Holschauer v Fisher, 5 AD3d553 [2004]). Accordingly, the complaint fails to state a cause of action to recoverdamages for legal [*2]malpractice.
In addition, the causes of action alleging breach of fiduciary duty and fraud areduplicative of the legal malpractice cause of action, since they arise from the same factsas those underlying the legal malpractice cause of action, and do not allege distinctdamages (see Biberaj vAcocella, 120 AD3d 1285, 1287 [2014]; Palmieri v Biggiani, 108 AD3d 604, 608 [2013]; Tsafatinos v Lee David Auerbach,P.C., 80 AD3d 749, 750 [2011]). Accordingly, the Supreme Court properlygranted those branches of the defendants' motion which were to dismiss the causes ofaction alleging breach of fiduciary duty and fraud.
Finally, the Supreme Court properly granted that branch of the defendants' motionwhich was pursuant to CPLR 3211 (a) to dismiss the cause of action alleging conversion."A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint on the ground that theaction is barred by documentary evidence may be granted only where the documentaryevidence utterly refutes the plaintiff's factual allegations, thereby conclusivelyestablishing a defense as a matter of law" (Mendelovitz v Cohen, 37 AD3d 670, 670 [2007]; seeGoshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326). "In order to establish acause of action to recover damages for conversion, the plaintiff must show legalownership or an immediate superior right of possession to a specific identifiable thingand must show that the defendant exercised an unauthorized dominion over the thing inquestion . . . to the exclusion of the plaintiff's rights" (Matter of Channel Mar. Sales, Inc.v City of New York, 75 AD3d 600, 601 [2010] [internal quotation marksomitted]). Here, the documentary evidence submitted by the parties conclusivelyestablished that the defendants did not exercise unauthorized dominion over certainfunds held in escrow to the exclusion of the plaintiffs' right (see CPLR 3211 [a][1]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326). Accordingly, theSupreme Court properly granted that branch of the defendants' motion which waspursuant to CPLR 3211 (a) (1) to dismiss the cause of action alleging conversion.Mastro, J.P., Leventhal, Miller and Maltese, JJ., concur.