Denlea & Carton LLP, White Plains, NY (James R. Denlea and Peter N. Freiberg of counsel), for appellant.
Housman & Associates, P.C., Tarrytown, NY (Mark E. Housman of counsel), for respondents.
RANDALL T. ENG, P.J., L. PRISCILLA HALL, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
Opinion
In an action to recover unpaid legal fees, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Hubert, J.), dated June 3, 2014, as granted that branch of the plaintiffs' motion which was pursuant to CPLR 3211(a) to dismiss his counterclaim to recover damages for legal malpractice.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs' motion which was pursuant to CPLR 3211(a) to dismiss the defendant's counterclaim to recover damages for legal malpractice is denied.
The defendant retained the plaintiff law firm, Lieberman & LeBovit (hereinafter the law firm), to represent him in an underlying divorce action commenced against him by his now former wife (hereinafter the wife). On March 9, 2012, during the course of the divorce action, the parties agreed to resolve all matters in the action and a stipulation of settlement was read into the record by the plaintiff Mitchell Lieberman, a member of the plaintiff law firm, and transcribed by a court reporter who was present with the parties at the office of the wife's counsel. According to the transcript, it was the parties' intention to have the stipulation so-ordered by the Supreme Court at an appearance on March 15, 2012. However, the settlement was not so-ordered by the court on that date, or at any
point thereafter. At some point, the wife repudiated the agreement.
In August 2012, the defendant discharged the plaintiffs and retained new counsel. On or about December 3, 2012, the plaintiffs commenced this action to recover unpaid legal fees. The defendant answered and asserted, inter alia, a counterclaim alleging that the plaintiffs committed legal malpractice in that they were negligent in failing to have a written stipulation of settlement signed by the parties and in failing to have the settlement so-ordered by the Supreme Court. The defendant claimed that, as a result, he incurred additional legal fees in having to continue litigating the divorce action. The plaintiffs moved, inter alia, to dismiss that counterclaim pursuant to CPLR 3211(a)(1) and (a)(7). The Supreme Court granted the plaintiffs' motion. The defendant appeals from so much of the order as granted that branch of the plaintiffs' motion which was to dismiss the counterclaim to recover damages for legal malpractice.
The Supreme Court improperly granted that branch of the plaintiffs' motion which was to dismiss the counterclaim to recover damages for legal malpractice. On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the pleading is afforded a liberal construction and the court must give the party “the benefit of every possible favorable inference, accept the facts alleged in the [pleading] as true, and determine only whether the facts as alleged fit within any cognizable legal theory” (High Tides, LLC v. DeMichele, 88 A.D.3d 954, 956, 931 N.Y.S.2d 377 [internal quotation marks omitted]; see McDonnell v. Bradley, 109 A.D.3d 592, 593, 970 N.Y.S.2d 612 ). “CPLR 3211(a)(7) dismissals merely address the adequacy of the [pleading], and do not reach the substantive merits of a [party's] cause of action” (Hendrickson v. Philbor Motors, Inc., 102 A.D.3d 251, 255, 955 N.Y.S.2d 384 ). Therefore, whether the pleading will later survive a motion for summary judgment, or whether the
party will ultimately prevail on the claims, is not relevant on a pre-discovery motion to dismiss (
see
Tooma v. Grossbarth, 121 A.D.3d 1093, 1095–1096,
995 N.Y.S.2d 593 ;
Endless Ocean, LLC v. Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 A.D.3d 587, 589,
979 N.Y.S.2d 84 ;
Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38,
827 N.Y.S.2d 231 ).
“To state a cause of action to recover damages for legal malpractice, a [party] 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
[party] actual and ascertainable damages” (
Dempster v. Liotti, 86 A.D.3d 169, 176,
924 N.Y.S.2d 484, quoting
Leder v. Spiegel, 9 N.Y.3d 836, 837,
840 N.Y.S.2d 888,
872 N.E.2d 1194 ;
see Stewart Tit.
Ins. Co. v. Wingate, Kearney & Cullen, 134 A.D.3d 924, 925,
21 N.Y.S.3d 327 ). However, a party is not obligated to show, on a motion to dismiss, that he or she actually sustained damages. He or she only has to plead allegations from which damages attributable to the attorney's malpractice might be reasonably inferred (
see
Mackey Reed Elec., Inc. v. Morrone & Assoc., P.C., 125 A.D.3d 822, 823,
6 N.Y.S.3d 65 ;
Fielding v. Kupferman, 65 A.D.3d 437, 442,
885 N.Y.S.2d 24 ;
Kempf v. Magida, 37 A.D.3d 763, 764,
832 N.Y.S.2d 47 ).
Here, construing the counterclaim liberally, accepting the facts alleged in the counterclaim as true, and according the defendant the benefit of every possible inference, the defendant has stated a cause of action alleging legal malpractice (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Tooma v. Grossbarth, 121 A.D.3d at 1095, 995 N.Y.S.2d 593 ). The counterclaim alleged that the plaintiffs were negligent in failing to ensure that the settlement was enforceable by having the parties sign a written stipulation of settlement or in having the settlement so-ordered by the Supreme Court, and that this negligence was a proximate cause of the defendant's damages.
To the extent that the counterclaim was dismissed on the basis of documentary evidence pursuant to CPLR 3211(a)(1), dismissal on such ground also was improper because the transcribed settlement submitted by the plaintiffs in support of their motion did not conclusively establish a defense as a matter of law (see Tooma v. Grossbarth, 121 A.D.3d at 1094–1095, 995 N.Y.S.2d 593 ; Rodolico v. Rubin & Licatesi, P.C., 114 A.D.3d 923, 925, 981 N.Y.S.2d 144 ; Endless Ocean, LLC v. Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 A.D.3d at 588, 979 N.Y.S.2d 84 ; Palmieri v. Biggiani, 108 A.D.3d 604, 607–608, 970 N.Y.S.2d 41 ; Siracusa v. Sager, 105 A.D.3d 937, 938, 963 N.Y.S.2d 364 ; Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d at 38–39, 827 N.Y.S.2d 231 ).
Accordingly, that branch of the plaintiffs' motion which was to dismiss the defendant's counterclaim to recover damages for legal malpractice should have been denied.