Opinion
2020–00656 Index No. 602899/19
05-31-2023
FLORAL PARK OPHTHALMOLOGY, P.C., et al., appellants, v. RUSKIN MOSCOU FALTISCHEK, LLP, et al., respondents.
Judah S. Shapiro (R. Thomas Masters, Garden City, NY, of counsel), for appellants. L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, NY (Marian C. Rice of counsel), for respondents.
Judah S. Shapiro (R. Thomas Masters, Garden City, NY, of counsel), for appellants.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, NY (Marian C. Rice of counsel), for respondents.
COLLEEN D. DUFFY, J.P., REINALDO E. RIVERA, LARA J. GENOVESI, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Vito M. DeStefano, J.), entered December 11, 2019. The order, insofar as appealed from, granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In February 2019, the plaintiffs commenced this action against the defendants, former counsel to the plaintiffs, inter alia, to recover damages for legal malpractice. The plaintiffs alleged, among other things, that the defendants committed legal malpractice in their representation of the plaintiffs in a breach of contract action commenced by the plaintiffs against a nonparty medical billing services provider (hereinafter the underlying action) and, with respect to the plaintiff Lawrence F. Jindra, in a "disability insurance claim matter." According to the plaintiffs, the defendants pressured the plaintiffs to "drop" the underlying action. The plaintiffs also alleged, inter alia, that the defendants, through legal nonfeasance, caused Jindra's disability insurance policy to lapse. Thereafter, the defendants moved to dismiss the complaint based on documentary evidence, the expiration of the statute of limitations, and the failure to state a cause of action. As is relevant to the appeal, by order entered December 11, 2019, the Supreme Court granted that branch of the defendants’ motion which was to dismiss the cause of action alleging legal malpractice. The plaintiffs appeal.
"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d 1504, 1505, 131 N.Y.S.3d 89 [internal quotation marks omitted]; see Mackey Reed Elec., Inc. v. Morrone & Assoc., P.C., 125 A.D.3d 822, 822, 6 N.Y.S.3d 65 ). "To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages" ( Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d at 1505, 131 N.Y.S.3d 89 [internal quotation marks omitted]; see Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d 812, 812, 963 N.Y.S.2d 313 ). "Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative" ( Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d at 1506, 131 N.Y.S.3d 89 [internal quotation marks omitted]). "[A] plaintiff must [also] show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney's negligence" ( Mackey Reed Elec., Inc. v. Morrone & Assoc., P.C., 125 A.D.3d at 823, 6 N.Y.S.3d 65 ) and that the attorney's negligence caused actual and ascertainable damages (see McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714 ). "A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel" ( Schiller v. Bender, Burrows & Rosenthal, LLP, 116 A.D.3d 756, 757, 983 N.Y.S.2d 594 [internal quotation marks omitted]).
Here, the plaintiffs failed to plead that, but for the defendants’ negligence, they would have prevailed in the underlying action (see Katsoris v. Bodnar & Milone, LLP , 186 A.D.3d at 1506, 131 N.Y.S.3d 89 ; Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d at 813, 963 N.Y.S.2d 313 ). To the contrary, as noted by the Supreme Court, it is uncontroverted that the plaintiffs settled the underlying action in order to avoid potential criminal liability for fraud. To the extent that the complaint alleged that the plaintiffs would have fared better at trial or in the settlement, the allegations in the complaint were conclusory and lacked factual support (see Katsoris v. Bodnar & Milone, LLP , 186 A.D.3d at 1506, 131 N.Y.S.3d 89 ). The plaintiffs’ "hindsight criticism of counsels’ reasonable course of action ... does not rise to the level of legal malpractice" ( Schiller v. Bender, Burrows & Rosenthal, LLP , 116 A.D.3d at 758, 983 N.Y.S.2d 594 [citation and internal quotation marks omitted]).
With respect to so much of the cause of action alleging legal malpractice as it relates to Jinder's disability insurance claim matter, the plaintiffs also failed to set out the elements of a legal malpractice cause of action, including omitting certain basic factual information such as any allegations that the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by any member of the legal profession and damages (see Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d at 812, 963 N.Y.S.2d 313 ). Moreover, the defendants established that, to the extent that the cause of action alleging legal malpractice was predicated upon Jindra's disability insurance claim matter, it was barred by the applicable statute of limitations (see Webster v. Sherman, 165 A.D.3d 738, 741, 85 N.Y.S.3d 457 ; Alizio v. Ruskin Moscou Faltischek, P.C., 126 A.D.3d 733, 735, 5 N.Y.S.3d 252 ).
Accordingly, the Supreme Court correctly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice.
In light of the foregoing, we need not reach the parties’ remaining contentions.
DUFFY, J.P., RIVERA, GENOVESI and TAYLOR, JJ., concur.