STEVENS v. WHEELER (2023)

Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about June 7, 2022, which granted defendants’ motion to dismiss the complaint under CPLR 3211(a)(1) and (7) and denied plaintiffs’ cross-motion to sanction defendants under 22 NYCRR 130–1.1, unanimously modified, on the law, to deny the motion to dismiss the second cause of action for legal malpractice, and to reinstate that cause of action, and otherwise affirmed, without costs.

Plaintiffs, as co-executors of the decedent's estate, essentially claim that defendants negligently failed to include a New York choice of law provision in decedent's will and negligently recommended that decedent's will be probated in Rhode Island rather than New York. According to plaintiffs, this resulted in decedent's wife claiming an elective one-half share of the net estate under Rhode Island law, rather than the one-third of his net estate that decedent had bequeathed to her in his will.  Decedent's wife's elective share claim was ultimately settled by stipulation.

Plaintiffs’ legal malpractice cause of action should not have been dismissed under CPLR 3211(a)(1) or CPLR 3211(a)(7) (see generally Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 [2007]).  The complaint adequately pleaded departure from the standard of care, i.e., failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and proximate cause.  Defendants did not establish, as a matter of law, that probate would have been the same regardless of whether the will contained a New York choice of law provision or whether probate was sought in New York instead of Rhode Island.  Defendants’ overarching position, that decedent's wife did not have a statutory right to decline decedent's bequest and elect to receive one-half of decedent's net estate under Rhode Island law, is incorrect (RI Gen Laws §§ 33–1–10, 33–28–1, 33–28–4[a]).  Defendants’ bare assertion, that their recommendation of Rhode Island as the probate forum was a reasonable strategic decision under the circumstances, is not persuasive at this stage of the case (see RTW Retailwinds, Inc. v. Colucci & Umans, 213 A.D.3d 509, 510, 183 N.Y.S.3d 395 [1st Dept. 2023]).

The settlement of the wife's elective share claim does not utterly refute plaintiffs’ allegations of proximate cause because the complaint supports the inference that the settlement was effectively compelled by defendants’ malpractice (see Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 429–430, 554 N.Y.S.2d 487 [1st Dept. 1990]).  Although the complaint does not allege any cognizable pecuniary damage to decedent's estate, plaintiff Hardie Stevens's affidavit corrects that deficiency by identifying several categories of damages to the estate, including increased taxes and legal fees (see Estate of Schneider v. Finmann, 15 N.Y.3d 306, 309–310, 907 N.Y.S.2d 119, 933 N.E.2d 718 [2010];  Rudolf, 8 N.Y.3d at 443, 835 N.Y.S.2d 534, 867 N.E.2d 385;  Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994]).  Defendants’ remaining arguments relating to damages are not persuasive on this 3211 motion.

The remaining causes of action (first and third through tenth) were properly dismissed as duplicative of the legal malpractice cause of action, because they were predicated on the same facts and sought the same relief or improperly identified damages as independent causes of action (see Palmeri v. Willkie Farr & Gallagher LLP, 156 A.D.3d 564, 567, 69 N.Y.S.3d 267 [1st Dept. 2017];  Garten v. Shearman & Sterling LLP, 52 A.D.3d 207, 207–208, 859 N.Y.S.2d 80 [1st Dept. 2008];  Rivera v. City of New York, 40 A.D.3d 334, 344, 836 N.Y.S.2d 108 [1st Dept. 2007], lv dismissed 16 N.Y.3d 782, 919 N.Y.S.2d 506, 944 N.E.2d 1145 [2011]).

Supreme Court providently exercised its discretion when it declined to sanction defendants (see generally 22 NYCRR 130–1.1).