| Rodriguez v Jacoby & Meyers, LLP |
| 2015 NY Slip Op 02151 [126 AD3d 1183] |
| March 19, 2015 |
| Appellate Division, Third Department |
[*1]
| Juan Rodriguez, Appellant, v Jacoby & Meyers,LLP, et al., Respondent. |
Stephen D. Chakwin Jr., New York City, for appellant.
Finkelstein & Partners, Newburgh (James W. Shuttleworth III of counsel), forrespondents.
Egan Jr., J. Appeal from an order of the Supreme Court (McGrath, J.), entered April5, 2013 in Columbia County, which, upon reconsideration, among other things, adheredto its prior decision granting defendants' motion to dismiss the complaint.
This legal malpractice claim has its origins in a personal injury action brought byplaintiff against the owner and operator of the truck that rear-ended plaintiff's vehicle inOctober 2002 while it was stopped at a traffic light. Following joinder of issue in theunderlying action, plaintiff discharged his initial counsel and, in September 2003,retained defendants to represent his interests therein. In December 2009,defendants—in the context of the personal injury action—moved for partialsummary judgment on the issue of liability. When that motion was denied, plaintiffdischarged defendants and retained new counsel to represent his interests upon appeal.Appellate counsel's efforts were successful—with the Second Departmentreversing the underlying order and granting plaintiff's motion for partial summaryjudgment on the issue of liability (Rodriguez v Ryder Truck, Inc., 91 AD3d 935 [2012]).
Plaintiff thereafter commenced this malpractice action against defendants contendingthat their delay in moving for summary judgment deprived him of the statutory interesttheoretically due on his prospective judgment (see CPLR 5002, 5004; cf.Love v State of New York, 78 NY2d 540, 544-545 [1991]; see generally Rice v Valentine,75 AD3d 631, 631 [2010]). Defendants then brought a pre-answer motion to dismissthe complaint for failure to state a cause of action, and plaintiff cross-moved for a stay ofthe malpractice action pending resolution of the [*2]damages portion of his claim in the personal injury action.By order dated October 23, 2012, Supreme Court granted defendants' motion and deniedplaintiff's cross motion. Plaintiff then moved to reargue contending, among other things,that Supreme Court misapplied the standard of review applicable to a motion to dismissunder CPLR 3211 (a) (7). By order entered April 5, 2013, SupremeCourt—although addressing the merits of plaintiff's argument—"denied"the motion to reargue, prompting this appeal.[FN*]
As a general proposition, "no appeal lies from the denial of a motion to reargue" (Gonzalez v L'Oreal USA, Inc.,92 AD3d 1158, 1160 [2012], lv dismissed 19 NY3d 874 [2012]). Where,however, the court actually addresses the merits of the moving party's motion, we willdeem the court to have granted reargument and adhered to its priordecision—notwithstanding language in the order indicating that reargument wasdenied (see Flisch vWalters, 42 AD3d 682, 683 [2007]; Adderley v State of New York, 35 AD3d 1043, 1043[2006]; Grasso v SchenectadyCounty Pub. Lib., 30 AD3d 814, 816 n 1 [2006]). Accordingly, Supreme Court'sApril 2013 order is appealable as of right (see CPLR 5701 [a] [2] [viii]; Foley v City of New York, 43AD3d 702, 703 [2007]).
Turning to the merits, the standard to be applied on a motion to dismiss for failure tostate a cause of action is both familiar and well settled—"we must afford thecomplaint a liberal construction, accept as true the allegations contained therein, accordthe plaintiff the benefit of every favorable inference and determine only whether the factsalleged fit within any cognizable legal theory" (He v Realty USA, 121 AD3d 1336, 1339 [2014] [internalquotation marks and citation omitted]; see Snyder v Brown Chiari, LLP, 116 AD3d 1116, 1117[2014]). That said, the "favorable treatment" accorded to a plaintiff's complaint is not"limitless" (Tenney v HodgsonRuss, LLP, 97 AD3d 1089, 1090 [2012]) and, as such, "conclusoryallegations—claims consisting of bare legal conclusions with no factualspecificity—are insufficient to survive a motion to dismiss" (Godfrey v Spano, 13 NY3d358, 373 [2009]; accordBarnes v Hodge, 118 AD3d 633, 633 [2014]; see Wiggins & Kopko, LLP vMasson, 116 AD3d 1130, 1131-1132 [2014]).
"In order to sustain a claim for legal malpractice, a plaintiff must establish both thatthe defendant attorney failed to exercise the ordinary reasonable skill and knowledgecommonly possessed by a member of the legal profession which results in actualdamages to a plaintiff, and that the plaintiff would have succeeded on the merits of theunderlying action but for the attorney's negligence" (Leder v Spiegel, 9 NY3d 836, 837 [2007], cert deniedSpiegel v Rowland, 552 US 1257 [2008] [internal quotation marks and citationomitted]; accord Hyman vSchwartz, 114 AD3d 1110, 1112 [2014], lv dismissed 24 NY3d 930[2014]; see MacDonald vGuttman, 72 AD3d 1452, 1454-1455 [2010]). Although the parties debatewhether the decision to bring a summary judgment motion and/or the timing thereof cangive rise to a claim for legal malpractice in the first instance (see e.g. Siracusa v Sager, 105AD3d 937, 938-939 [2013]; Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 846-847[2012], lv denied 20 NY3d 857 [2013]; Hand v Silberman, 15 AD3d 167, 167 [2005], lvdenied 5 NY3d 707 [2005]; Palazzolo v Herrick, Feinstein, LLP, 298 AD2d372, 372-373 [2002]) and, further, whether plaintiff's damages—in the absence ofa final judgment in the underlying personal injury action—are speculative, theseissues need not detain us.
[*3] To survivedefendants' motion to dismiss, it was incumbent upon plaintiff to, among other things,"plead specific factual allegations establishing that but for counsel's deficientrepresentation, there would have been a more favorable outcome to the underlyingmatter" (Dweck Law Firm v Mann, 283 AD2d 292, 293 [2001]; see Schiller v Bender, Burrows& Rosenthal, LLP, 116 AD3d 756, 758 [2014]; Tortura v Sullivan Papain BlockMcGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005], lv denied6 NY3d 701 [2005]), i.e., an earlier—and successful—award of partialsummary judgment on the issue of liability. This plaintiff failed to do. Noticeably absentfrom both plaintiff's complaint and the bills of particulars submitted in opposition todefendants' motion to dismiss are any factual allegations to support plaintiff'sclaim that defendants' failure to file a motion for partial summary judgment on his behalfprior to December 2009 constituted legal malpractice. Specifically, plaintiff failed todelineate, among other things, the general course and defendants' overall management ofthe personal injury action, including when discovery was undertaken and/or completed orwhether there were ongoing settlement discussions prior to the filing of the underlyingmotion. Rather, plaintiff simply alleged—in an entirely conclusoryfashion—that "the [subject] motion could have been made at any time once issuewas joined" in April 2003. While this theoretically is true (see CPLR 3212 [a]),absent detailed factual allegations documenting the efforts undertaken by defendantsover the course of the ensuing six years and the manner in which the litigationprogressed, plaintiff simply cannot establish that, had the motion for partial summaryjudgment been brought prior to December 2009, it would have been successful (compare Fielding vKupferman, 65 AD3d 437, 441-442 [2009]). This absence of proof is fatal toplaintiff's malpractice claim and, therefore, Supreme Court properly granted defendants'motion to dismiss upon this ground.
Lynch and Clark, JJ., concur.
McCarthy, J.P. (dissenting). The standard on a motion to dismiss for failure to state acause of action, as the majority correctly states, requires courts to "afford the complaint aliberal construction, accept as true the allegations contained therein, accord the plaintiffthe benefit of every favorable inference and determine only whether the facts alleged fitwithin any cognizable legal theory" (He v Realty USA, 121 AD3d 1336, 1339 [2014] [internalquotation marks and citation omitted]). Under that standard, the complaint here wassufficient. I, therefore, respectfully dissent.
While conclusory allegations containing no facts, or just legal statements, areinsufficient to survive such a motion (see Godfrey v Spano, 13 NY3d 358, 373 [2009]),complaints need not include all of the facts and details supporting a cause of action(see CPLR 3013). Although the complaint here is sparse on factual details, italleges that plaintiff retained defendants in September 2003 for his personal injuryaction, after joinder of issue, and that, in December 2009, defendant moved for partialsummary judgment on liability based on "long-established case law" regarding rear-endcollisions. The motion was ultimately successful. Plaintiff also alleged that the liabilityissue presented in the summary judgment motion could have been made in 2003, and thefailure to make the motion earlier—which was allegedly due to defendants'negligence and failure to exercise the care, skill and diligence typically possessed bymembers of the legal community—deprived plaintiff of prejudgment interest thatis calculated from the determination of liability. The complaint further alleges that"[d]efendants' negligence was a proximate cause of plaintiff's loss of over six years of9% interest on the judgment in the underlying case."
[*4] The majority correctly states that the complaint doesnot contain any details concerning defendants' efforts during the six years, which couldestablish that the motion would have been successful earlier. But plaintiff may notpossess such facts or information and may only learn them through the discovery processin this action. Plaintiff is not required to prove his cause of action at this proceduralstage; he is only required to make allegations as to each element of a cause of action thathe will later attempt to prove (see Tenzer, Greenblatt, Fallon & Kaplan vEllenberg, 199 AD2d 45, 45 [1993]). Plaintiff alleged that the motion could havebeen made earlier and defendants' failure to make the motion in a timely fashion wasimproper under the standards of the profession. These allegations will need to be fleshedout and proven at a later stage of the action, but we are only at the pleading stage. Even ifplaintiff can never prove that defendants should have made the motion in September2003, the complaint alleges that defendants had no valid reason for failing to make themotion in a timely fashion, which could be liberally construed to include a date later than2003 but well before the 2009 date when defendants eventually made the motion. Aplaintiff may not merely allege legal conclusions, but in this legal malpractice claimplaintiff was permitted to rely on legal statements concerning the right to prejudgmentinterest and the logical conclusion that an earlier determination of liability would permita greater accrual of interest (i.e., but for the delay in filing the motion, plaintiff wouldultimately have collected a larger amount in interest). It may have been preferable forplaintiff to include more information in the complaint, and he may or may not be able toeventually establish that defendants' actions constituted legal malpractice. For purposesof this motion to dismiss for failure to state a cause of action, however, the complaintaddressed each element, so defendants' motion should have been denied (see Rivas v RaymondSchwartzberg & Assoc., PLLC, 52 AD3d 401, 401 [2008]; Gelfand v Oliver, 29 AD3d736, 737 [2006]; Tenzer, Greenblatt, Fallon & Kaplan v Ellenberg, 199AD2d at 45).
Ordered that the order is affirmed, with costs.
Footnote *:Although plaintiff alsobelatedly filed a notice of appeal from Supreme Court's October 2012 order, this Courtgranted defendants' motion to dismiss the appeal.