Snyder v. Brown Chiari, LLP

• Decision Date: 03 April 2014
• Citation: 983 N.Y.S.2d 659,116 A.D.3d 1116,2014 N.Y. Slip Op. 02363
• Parties: Anna M. SNYDER, Appellant, v. BROWN CHIARI, LLP, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 1116

983 N.Y.S.2d 659

2014 N.Y. Slip Op. 02363

Anna M. SNYDER, Appellant,

v.BROWN CHIARI, LLP, et al., Respondents.

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

April 3, 2014.

Law Offices of David H. Jacobs, Corning (David H. Jacobs as counsel), for appellant.

Connors & Vilardo, LLP, Buffalo (Randall D. White of counsel), for respondents.

Before: PETERS, P.J., LAHTINEN, ROSE and EGAN JR., JJ.

LAHTINEN, J.

Appeal from an order of the Supreme Court (Sherman, J.), entered August 13, 2012 in Schuyler County, which granted defendants' motion to dismiss the complaint.

In late 2002, plaintiff underwent a surgical procedure and shortly thereafter developedcomplications that resulted in three further surgeries, none of which was successful. She retained defendants, which commenced a medical malpractice action in March 2004 against the physician who had performed the initial surgery as well as that physician's partnership. In late February 2007, and with a trial date scheduled for early March 2007, defendants attempted to withdraw as counsel to plaintiff because, among other things, an expert had not been retained. Supreme Court (Falvey, J.) denied defendants' motion to withdraw as counsel to plaintiff, granted a motion by the defendants in the medical malpractice action to preclude plaintiff from offering expert testimony at trial and, because a prima facie case could not be established without expert proof, dismissed the medical malpractice action. When plaintiff attempted to obtain her file from defendants, Supreme Court permitted a lien for defendants' disbursements of $7,500.45.

Plaintiff commenced the instant action in early 2009 alleging, among other things, legal malpractice. Defendants answered and eventually made a motion to dismiss pursuant to CPLR 3211 asserting various grounds including collateral estoppel and failure to state a cause of action. Supreme Court (Sherman, J.) found no merit in the collateral estoppel argument; however, the court determined that plaintiff failed to establish the legal malpractice claim because of a lack of proof that she would have been successful in the underlying medical malpractice action. Finding the remaining causes of action duplicative of the legal malpractice claim, the court dismissed the complaint. Plaintiff appeals.

Plaintiff stated a cause of action for legal malpractice. Elements of such a cause of action include “establish[ing] 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” ( AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 434, 834 N.Y.S.2d 705, 866 N.E.2d 1033 [2007] [internal citations omitted]; accord Alaimo v. McGeorge, 69 A.D.3d 1032, 1034, 893 N.Y.S.2d 331 [2010] ). In the procedural context of a motion to dismiss for failure to state a cause of action, “the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference” ( EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 [2005] ). “Whether the plaintiff will ultimately be successful in establishing those allegations is not part of the calculus” ( Landon v. Kroll Lab. Specialists, Inc., 22 N.Y.3d 1, 6, 977 N.Y.S.2d 676, 999 N.E.2d 1121 [2013] [internal quotation marks and citations omitted] ) and “a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint” ( Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ).

Here, plaintiff submitted, among other things, an affidavit and attached memorandum from a physician licensed in New York. This physician had been consulted by defendants in 2003, and h...