Janker v. Silver, Forrester & Lesser, P.C.

• Court: New York Supreme Court — Appellate Division
• Citation: Janker v. Silver, Forrester & Lesser, P.C., 135 A.D.3d 908, 24 N.Y.S.3d 182, 2016 N.Y. Slip Op. 481 (N.Y. App. Div. 2016)
• Decision Date: 27 January 2016
• Docket Number: 2014-02056,Index No. 3917/13.
• Parties: Marlene JANKER, respondent, v. SILVER, FORRESTER & LESSER, P.C., et al., appellants, et al., defendant.

135 A.D.3d 908

24 N.Y.S.3d 182

2016 N.Y. Slip Op. 00481

Marlene JANKER, respondent,

v.SILVER, FORRESTER & LESSER, P.C., et al., appellants, et al., defendant.

2014-02056

Index No. 3917/13.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 27, 2016.

Housman & Associates, P.C., Tarrytown, N.Y. (Mark E. Housman of counsel), for appellants.

Klein Varble & Associates, P.C., Poughkeepsie, N.Y. (Michael R. Varble of counsel), for respondent.

In an action, inter alia, to recover damages for legal malpractice, the defendants Silver, Forrester & Lesser, P.C., Silver, Forrester, Schisano & Lesser, P.C., Barry Silver, Michael Forrester, Sol Lesser, and Richard Schisano appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Onofry, J.), dated October 10, 2013, as denied their motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the appellants' motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them is granted.

The plaintiff's former husband commenced an action for a divorce and ancillary relief against her, and the plaintiff retained the appellants to represent her in that action. Prior to trial, the plaintiff and her former husband entered into a stipulation of settlement on the record in open court, which ended that case. Approximately two years later, the plaintiff commenced this action to recover damages for, among other things, legal malpractice. The plaintiff alleged, inter alia, that the appellants failed to ascertain the full extent of her former husband's assets and failed to adequately explain the stipulation of settlement to her. The appellants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. The Supreme Court, among other things, denied the appellants' motion. We reverse insofar as appealed from.

“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” (Dinger v. Cefola, 133 A.D.3d 816, 817, 20 N.Y.S.3d 416; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be appropriately granted “only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; see Rabos v. R & R Bagels & Bakery, Inc., 100 A.D.3d 849, 851, 955 N.Y.S.2d 109; Norment v. Interfaith Ctr. of N.Y., 98 A.D.3d 955, 955, 951 N.Y.S.2d 531).

“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” (Dempster v. Liotti, 86 A.D.3d 169, 176, 924 N.Y.S.2d 484 [internal quotation marks omitted]; see Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 19 N.Y.S.3d 488, 41 N.E.3d 353; Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 441, 835 N.Y.S.2d 534, 867 N.E.2d 385). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the lawyer's negligence” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; see Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d 812, 813, 963 N.Y.S.2d 313). “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” (Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430, 554 N.Y.S.2d 487; see Leiner v. Hauser, 120 A.D.3d 1310, 1311, 992 N.Y.S.2d 359; Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d at 813, 963 N.Y.S.2d 313; Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C., 21 A.D.3d 1082, 1083, 803 N.Y.S.2d 571). “[A] plaintiff must plead and prove actual, ascertainable damages as a result of an attorney's negligence” (Dempster v. Liotti, 86 A.D.3d at 177, 924 N.Y.S.2d 484). “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” (bua v. purcell & ingraO, p.c., 99 a.D.3D 843, 848, 952 n.y.s.2d 592 [citations omitted]; see Dempster v. Liotti, 86 A.D.3d at 177, 924 N.Y.S.2d 484; Hashmi v. Messiha, 65 A.D.3d 1193, 1195, 886 N.Y.S.2d 712; Riback v. Margulis, 43 A.D.3d 1023, 1023, 842 N.Y.S.2d 54).

Here, to the extent that the complaint asserted that the appellants were negligent in failing to ascertain the full extent of the assets of the plaintiff's former husband, it failed to sufficiently allege that the stipulation of settlement entered into was effectively compelled by the mistakes of counsel, since the plaintiff acknowledged that she elected to enter into the settlement agreement even though she was aware that her former husband had not fully disclosed his assets (see AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 435–436, 834 N.Y.S.2d 705, 866 N.E.2d 1033; Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d at 813, 963 N.Y.S.2d...