Keness v. Feldman, Kramer & Monaco, P.C.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: RANDALL T. ENG
• Citation: Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d 812, 963 N.Y.S.2d 313, 2013 N.Y. Slip Op. 2376 (N.Y. App. Div. 2013)
• Decision Date: 10 April 2013
• Parties: Nancy KENESS, appellant, v. FELDMAN, KRAMER & MONACO, P.C., et al., respondents.

105 A.D.3d 812

963 N.Y.S.2d 313

2013 N.Y. Slip Op. 02376

Nancy KENESS, appellant,

v.FELDMAN, KRAMER & MONACO, P.C., et al., respondents.

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

April 10, 2013.

Andrew Lavoott Bluestone, New York, N.Y., for appellant.

Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Peter T. Shapiro of counsel), for respondents Feldman, Kramer & Monaco, P.C., Candace Dellacona, and Herbert Kramer.

Housman & Associates, P.C., Tarrytown, N.Y. (Brian J. Divney of counsel), for respondent Alfreida Kenny.

RANDALL T. ENG, P.J., THOMAS A. DICKERSON, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated January 4, 2012, which granted the motion of the defendant Alfreida Kenny and the separate motion of the defendants Feldman, Kramer & Monaco, P.C., Candace Dellacona, and Herbert Kramer pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see 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;Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511). “ ‘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' ” ( Held v. Seidenberg, 87 A.D.3d 616, 617, 928 N.Y.S.2d 477, quoting Dempster v. Liotti, 86 A.D.3d 169, 176, 924 N.Y.S.2d 484). 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 attorney's negligence ( see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 441, 835 N.Y.S.2d 534, 867 N.E.2d 385). “ ‘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’ ” ( Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C., 21 A.D.3d 1082, 1083, 803 N.Y.S.2d 571, quoting Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430, 554 N.Y.S.2d 487).

Here, the Supreme Court properly granted the motion of the defendant Alfreida Kenny pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against her. The complaint failed to allege the existence of an attorney-client relationship, fiduciary relationship, or even a contractual relationship between the plaintiff and Kenny ( see Cascardo v. Stacchini, 100 A.D.3d 675, 676, 954 N.Y.S.2d 177). Consequently, the complaint failed to state any cause of action sounding in either legal malpractice, breach of fiduciary duty, or breach of contract insofar as asserted against Kenny.

The Supreme Court also properly granted the separate motion of the defendantsFeldman, Kramer & Monaco, P.C., Candace Dellacona, and Herbert Kramer (hereinafter collectively the Feldman defendants) pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.

Viewing the complaint in the light most favorable to the plaintiff ( see Leon v. Martinez, 84 N.Y.2d at 87–88, 614...