PALAZZOLO v. HERRICK, FEINSTEIN, LLP

ORDERED that the order is affirmed insofar as appealed from, with costs.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the facts pleaded are presumed to be true and accorded every favorable inference (see CPLR 3026; Leon v. Martinez, 84 N.Y.2d 83, 88). However, bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on such a motion (see Morone v. Morone, 50 N.Y.2d 481; Kantrowitz Goldhamer v. Geller, 265 A.D.2d 529; Mayer v. Sanders, 264 A.D.2d 827; Meyer v. Guinta, 262 A.D.2d 463, 464; Doria v. Masucci, 230 A.D.2d 764, 765; Franklin v. Winard, 199 A.D.2d 220).

Attorneys may select among reasonable courses of action in prosecuting their clients' cases without thereby committing malpractice (see Rosner v. Paley, 65 N.Y.2d 736, 738). Thus, a purported malpractice claim that amounts only to a client's criticism of counsel's strategy may be dismissed as insufficient (see Dweck Law Firm v. Mann, 283 A.D.2d 292, 293). Here, the Supreme Court correctly determined that the plaintiffs' complaint failed to state a cause of action on the ground that the defendants cannot be held liable for choosing a reasonable, although unsuccessful, course of action (see Darby Darby v. VSI Intl., 95 N.Y.2d 308; Rosner v. Paley, supra; Dweck Law Firm v. Mann, supra).

In view of this determination, it is unnecessary to reach the other bases cited by the Supreme Court for dismissal of the plaintiffs' complaint.

The plaintiffs' remaining contentions are without merit.

S. MILLER, J.P., CRANE, COZIER and RIVERA, JJ., concur.