FELDMAN v. FINKELSTEIN

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Docket Number

Nos. 2009-09870, 2009-09872.

Attorney(S)

Andrew Lavoott Bluestone, New York, N.Y., for appellants-respondents. Furman Kornfeld Brennan, New York, N.Y. (A. Michael Furman of counsel), for respondents-appellants.

Judges

Reinaldo E. Rivera
Ruth C. Balkin
John M. Leventhal
Sheri S. Roman

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Smart Summary

Factual and Procedural Background

This case arises from an action to recover damages for legal malpractice and breach of contract. The plaintiffs appealed from an order of the Supreme Court, Dutchess County, which granted the defendants' motion to dismiss the first cause of action for legal malpractice pursuant to CPLR 3211(a)(7), and from an order denying the plaintiffs' cross motion for leave to amend the complaint while granting the defendants' motion to dismiss the first cause of action in the proposed amended complaint pursuant to CPLR 3211(a)(5). The defendants cross-appealed from the denial of their motion to dismiss the second cause of action for breach of contract pursuant to CPLR 3211(a)(1) and (7).

Legal Issues Presented

Whether the plaintiffs adequately pleaded a cause of action for legal malpractice sufficient to survive a motion to dismiss under CPLR 3211(a)(7).
Whether the second cause of action for breach of contract was duplicative and subject to dismissal.
Whether the plaintiffs should be granted leave to amend the complaint to replead the first cause of action.
Whether the defendants' motion to dismiss the first cause of action in the proposed amended complaint pursuant to CPLR 3211(a)(5) was properly granted.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Leon v Martinez, 84 NY2d 83	Standard for motion to dismiss under CPLR 3211(a)(7): liberal construction, accept facts as true, and determine if facts fit any cognizable legal theory.	Guided the court's review of the sufficiency of the complaint's allegations for legal malpractice.
Sokol v Leader, 74 AD3d 1180	Standard for motion to dismiss and the requirement to accept allegations as true without considering evidentiary submissions.	Supported the court's conclusion that the complaint adequately stated a cause of action and that dismissal was improper at this stage.
Uzzle v Nunzie Ct. Homeowners Assn., Inc., 70 AD3d 928	Dismissal of duplicative causes of action.	Used to justify dismissal of the breach of contract cause of action as duplicative of the malpractice claim.
DeNatale v Santangelo, 65 AD3d 1006	Elements required to plead legal malpractice: failure to exercise reasonable care and proximate cause of damages.	Supported the court's finding that the complaint sufficiently alleged legal malpractice.
Guggenheimer v Ginzburg, 43 NY2d 268	The issue at motion to dismiss stage is whether a cause of action is stated, not whether it can be proven.	Clarified that evidentiary submissions are not considered at the dismissal stage.
Aurora Loan Servs., LLC v Thomas, 70 AD3d 986	Motions for leave to amend pleadings should be freely granted absent prejudice, surprise, or palpable insufficiency.	Guided the court’s exercise of discretion in granting leave to amend the complaint.
Tyson v Tower Ins. Co. of N.Y., 68 AD3d 977	Standard for granting leave to amend pleadings.	Supported the court’s decision to allow amendment of the first cause of action.
Peerless Ins. Co. v Micro Fibertek, Inc., 67 AD3d 978	Criteria for granting leave to amend pleadings.	Reinforced the principle that leave to amend should be granted unless the amendment is palpably insufficient.
Goodleaf v Tzivos Hashem, Inc., 68 AD3d 817	Amendments that are patently devoid of merit should be denied.	Supported denial of amendment to include duplicative causes of action.
Smiley Realty of Brooklyn, LLC v Excello Film Pak, Inc., 67 AD3d 891	Amendment standards regarding merit of proposed claims.	Supported denial of amendment for duplicative claims.
Uadi, Inc. v Stern, 67 AD3d 899	Amendment standards regarding merit of proposed claims.	Supported denial of amendment for duplicative claims.

Court's Reasoning and Analysis

The court applied the standard for motions to dismiss pursuant to CPLR 3211(a)(7), requiring a liberal construction of the complaint, acceptance of the facts alleged as true, and determination of whether the facts fit within any cognizable legal theory. It found that the complaint sufficiently alleged the defendants’ failure to exercise the degree of care commonly possessed by legal professionals and that such negligence was a proximate cause of damages, thereby stating a valid cause of action for legal malpractice.

The court noted that the Supreme Court erred by granting dismissal without considering that the motion to dismiss tests only the sufficiency of the pleading, not the merits of the claim. Conversely, the second cause of action for breach of contract was duplicative of the malpractice claim and properly dismissed.

Regarding the proposed amended complaint, the court held that the denial of leave to amend the first cause of action was an improvident exercise of discretion. The court emphasized that leave to amend should be freely granted unless the amendment is palpably insufficient or devoid of merit. It modified the lower court’s order to grant leave to amend the first cause of action but denied amendment to add duplicative claims, which lacked merit.

Finally, the court reversed the dismissal of the first cause of action in the proposed amended complaint, finding that it should not have been dismissed under CPLR 3211(a)(5).

Holding and Implications

The court reversed the dismissal of the first cause of action for legal malpractice, granted dismissal of the second cause of action for breach of contract as duplicative, and granted the plaintiffs leave to amend the first cause of action in the complaint.

The direct effect of this decision is that the legal malpractice claim will proceed, while the breach of contract claim is dismissed. The plaintiffs are permitted to amend their complaint to replead the malpractice claim, but not to add duplicative causes of action. The court’s ruling clarifies the application of CPLR 3211 standards and the liberal policy favoring amendment of pleadings absent prejudice or meritlessness. No new precedent was established beyond the application of established principles.

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ANDREW FELDMAN et al., Appellants-Respondents, v. FINKELSTEIN PARTNERS, LLP, et al., Respondents-Appellants.

Ordered that the order dated June 3, 2009, is reversed insofar as appealed and cross-appealed from, on the law, without costs or disbursements, that branch of the defendants' motion which was to dismiss the first cause of action to recover damages for legal malpractice is denied, and that branch of the defendants' motion which was to dismiss the second cause of action to recover damages for breach of contract pursuant to CPLR 3211 (a) (7) is granted; and it is further,

Ordered that the order dated September 28, 2009, is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof denying that branch of the plaintiffs' cross motion which was for leave to amend the first cause of action in the complaint, and substituting therefor a provision granting that branch of the plaintiffs' cross motion, and (2) by deleting the provision thereof granting that branch of the defendants' motion which was to "dismiss" the first cause of action in the proposed amended complaint pursuant to CPLR 3211 (a) (5), and substituting therefor a provision denying that branch of the defendants' motion; as so modified, the order dated September 28, 2009, is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiffs.

In determining a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must afford the pleading a liberal construction ( see CPLR 3026; Leon v Martinez, 84 NY2d 83, 87), accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Leon v Martinez, 84 NY2d at 87-88; Sokol v Leader, 74 AD3d 1180; Uzzle v Nunzie Ct. Homeowners Assn., Inc., 70 AD3d 928, 929-930; Nelson v Roth, 69 AD3d 912; Morales v AMS Mtge. Servs., Inc., 69 AD3d 691, 692; Matter of Doman, 68 AD3d 862, 863).

Contrary to the Supreme Court's determination, the complaint adequately pleaded that the defendants "failed to exercise that degree of care, still, and diligence commonly possessed by a member of the legal community," and that their negligence was "a proximate cause of damages" ( DeNatale v Santangelo, 65 AD3d 1006, 1007), and, therefore, was sufficient to state a cause of action to recover damages for legal malpractice. Contrary to the defendants' contention, there is no indication that the Supreme Court considered evidentiary submissions and, thus, the issue to be determined at this stage is not whether the plaintiffs have a cause of action, but only whether they have stated one ( see Guggenheimer v Ginzburg, 43 NY2d 268, 275; Sokol v Leader, 74 AD3d at 1181-1182). Accordingly, the Supreme Court improperly granted that branch of the defendants' motion which was to dismiss the first cause of action. However, the plaintiffs' second cause of action alleging breach of contract was duplicative, and should have been dismissed ( see Uzzle v Nunzie Ct. Homeowners Assn., Inc., 70 AD3d at 930; Maiolini v McAdams Fallon, P.C., 61 AD3d 644, 645; Kvetnaya v Tylo, 49 AD3d 608, 609; Shivers v Siegel, 11 AD3d 447).

In light of the foregoing determination, that branch of the defendants' motion which was to "dismiss" the first cause of action in the proposed amended complaint pursuant to CPLR 3211 (a) (5) should have been denied.

"Motions for leave to amend pleadings should be freely granted, absent prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit" ( Aurora Loan Serus., LLC v Thomas, 70 AD3d 986, 987; see CPLR 3025 [b]; Tyson v Tower Ins. Co. of N.Y., 68 AD3d 977, 979; Peerless Ins. Co. v Micro Fibertek, Inc., 67 AD3d 978, 979-980). Here, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs' cross motion which was for leave to amend the first cause of action in the complaint ( see CPLR 3025 [b]). However, the remaining causes of action contained in the proposed amended complaint were duplicative of the first cause of action; thus, the plaintiffs may not amend the complaint to include those causes of action, as the proposed amendment is patently devoid of merit ( see Goodleaf v Tzivos Hashem, Inc., 68 AD3d 817, 817-818; Smiley Realty of Brooklyn, LLC v Excello Film Pak, Inc., 67 AD3d 891, 892; Uadi, Inc. v Stern, 67 AD3d 899, 900).