WEIS v. RHEEM BELL FREEMAN LLP (2023)

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered April 12, 2022, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to dismiss the complaint pursuant to pursuant to CPLR 3211(a)(1) and 3211(a)(7), unanimously affirmed, without costs.

Defendants were entitled to dismissal of the complaint given that plaintiffs failed to allege actual and ascertainable damages that were proximately caused by defendants’ alleged malpractice, which plaintiffs claim prevented them from collecting on confessions of judgment filed by defendants.  The confessions of judgment were found to be valid and enforceable.  Cases that hold that the collectability of a judgment that would have been obtained in an underlying action, but for the defendant lawyer's malpractice (see Lindenman v. Kreitzer, 7 A.D.3d 30, 775 N.Y.S.2d 4 [1st Dept. 2004]), are not pertinent here, where plaintiffs obtained valid judgments.  The issue here is whether plaintiffs sustained actual damages, not whether defendants’ alleged negligence precluded plaintiffs from recovering a favorable judgment in an underlying action.  Furthermore, the allegations of proximate causation depend on multiple speculative allegations that a different result would have followed if a different deal could have been negotiated, with different events of default, and if defendants had acted more quickly (see Hickey v. Steven E. Kaufman, P.C., 156 A.D.3d 436, 437, 66 N.Y.S.3d 474 [1st Dept. 2017], lv denied 32 N.Y.3d 905, 2018 WL 4440619 [2018];  Heritage Partners, LLC v. Stroock & Stroock & Lavan LLP, 133 A.D.3d 428, 428–429, 19 N.Y.S.3d 511 [1st Dept. 2015], lv denied 27 N.Y.3d 904, 2016 WL 1692057 [2016]).

Plaintiffs have abandoned their appeal from the dismissal of their claims for breach of fiduciary duty and unjust enrichment by failing to make any arguments as to those claims in their appellate briefs (see M & E 73–75 LLC v. 57 Fusion LLC, 189 A.D.3d 1, 6, 128 N.Y.S.3d 200 [1st Dept. 2020], lv dismissed 36 N.Y.3d 1086, 142 N.Y.S.3d 884, 166 N.E.3d 1062 [2021]).