Rodriguez v. Jacoby

• Decision Date: 19 March 2015
• Parties: Juan RODRIGUEZ, Appellant, v. JACOBY & MEYERS, LLP, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

?126 A.D.3d 1183
3 N.Y.S.3d 793
2015 N.Y. Slip Op. 02151

Juan RODRIGUEZ, Appellant,
v.
JACOBY & MEYERS, LLP, et al., Respondents.

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

March 19, 2015

Affirmed.

McCarthy, J., filed dissenting opinion.

[3 N.Y.S.3d 794]

Stephen D. Chakwin Jr., New York City, for appellant.

Finkelstein & Partners, Newburgh (James W. Shuttleworth III of counsel), for respondents.

Before: McCARTHY, J.P., EGAN JR., LYNCH and CLARK, JJ. EGAN JR., J.

Appeal from an order of the Supreme Court (McGrath, J.), entered April 5, 2013 in Columbia County, which, upon reconsideration, among other things, adhered to its prior decision granting defendants' motion to dismiss the complaint.

This legal malpractice claim has its origins in a personal injury action brought by plaintiff against the owner and operator of the truck that rear-ended plaintiff's vehicle in October 2002 while it was stopped at a traffic light. Following joinder of issue in the underlying 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 partial summary judgment on the issue of liability. When that motion was denied, plaintiff discharged defendants and retained new counsel to represent his interests upon appeal. Appellate counsel's efforts were successful—with the Second Department reversing the underlying order and granting plaintiff's motion for partial summary judgment on the issue of liability ( Rodriguez v. Ryder Truck, Inc., 91 A.D.3d 935, 937 N.Y.S.2d 602, 937 N.Y.S.2d 602 [2012] ).

Plaintiff thereafter commenced this malpractice action against defendants contending that their delay in moving for summary judgment deprived him of the statutory interest theoretically due on his prospective judgment ( see CPLR 5002, 5004; cf.

[3 N.Y.S.3d 795]

Love v. State of New York, 78 N.Y.2d 540, 544–545, 577 N.Y.S.2d 359, 583 N.E.2d 1296 [1991]; see generally Rice v. Valentine, 75 A.D.3d 631, 631, 907 N.Y.S.2d 28 [2010] ). Defendants then brought a pre-answer motion to dismiss the complaint for failure to state a cause of action, and plaintiff cross-moved for a stay of the malpractice action pending resolution of the damages portion of his claim in the personal injury action. By order dated October 23, 2012, Supreme Court granted defendants' motion and denied plaintiff'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 dismiss under CPLR 3211(a)(7). By order entered April 5, 2013, Supreme Court—although addressing the merits of plaintiff's argument—“denied” the motion to reargue, prompting this appeal. ¹

As a general proposition, “no appeal lies from the denial of a motion to reargue” ( Gonzalez v. L'Oreal USA, Inc., 92 A.D.3d 1158, 1160, 940 N.Y.S.2d 328 [2012], lv. dismissed 19 N.Y.3d 874, 947 N.Y.S.2d 48, 969 N.E.2d 1163 [2012] ). Where, however, the court actually addresses the merits of the moving party's motion, we will deem the court to have granted reargument and adhered to its prior decision—notwithstanding language in the order indicating that reargument was denied ( see Flisch v. Walters, 42 A.D.3d 682, 683, 839 N.Y.S.2d 602 [2007]; Adderley v. State of New York, 35 A.D.3d 1043, 1043, 825 N.Y.S.2d 384 [2006]; Grasso v. Schenectady County Pub. Lib., 30 A.D.3d 814, 816 n. 1, 817 N.Y.S.2d 186 [2006] ). Accordingly, Supreme Court's April 2013 order is appealable as of right ( see CPLR 5701[a][2] [viii]; Foley v. City of New York, 43 A.D.3d 702, 703, 842 N.Y.S.2d 399 [2007] ).

Turning to the merits, the standard to be applied on a motion to dismiss for failure to state a cause of action is both familiar and well settled—“we must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts fit within any cognizable legal theory” ( He v. Realty USA, 121 A.D.3d 1336, 1339, 996 N.Y.S.2d 734, 996 N.Y.S.2d 734 [2014] [internal quotation marks and citations omitted]; see Snyder v. Brown Chiari, LLP, 116 A.D.3d 1116, 1117, 983 N.Y.S.2d 659 [2014] ). That said, the “favorable treatment” accorded to a plaintiff's complaint is not “limitless” ( Tenney v. Hodgson Russ, LLP, 97 A.D.3d 1089, 1090, 949 N.Y.S.2d 535 [2012] ) and, as such, “conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss” ( Godfrey v. Spano, 13 N.Y.3d 358, 373, 892 N.Y.S.2d 272, 920 N.E.2d 328 [2009]; accord Barnes v. Hodge, 118 A.D.3d 633, 633, 989 N.Y.S.2d 467, 989 N.Y.S.2d 467 [2014]; see Wiggins & Kopko, LLP v. Masson, 116 A.D.3d 1130, 1131–1132, 983 N.Y.S.2d 665 [2014] ).

“In order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney's negligence” ( Leder v. Spiegel, 9 N.Y.3d 836, 837, 840 N.Y.S.2d 888, 872 N.E.2d 1194 [2007], cert. denied sub nom. Spiegel v. Rowland, 552 U.S. 1257, 128 S.Ct. 1696, 170 L.Ed.2d 354 [2008] [internal quotation marks and citation omitted];

[3 N.Y.S.3d 796]

accord Hyman v. Schwartz, 114 A.D.3d 1110, 1112, 981 N.Y.S.2d 468 [2014], lv. dismissed 24 N.Y.3d 930, 993 N.Y.S.2d 541, 17 N.E.3d 1137 [2014]; see MacDonald v. Guttman, 72 A.D.3d 1452, 1454–1455, 900 N.Y.S.2d 177 [2010] ). Although the parties debate whether the decision to bring a summary judgment motion...