126 MAIN STREET LLC v. KRIEGSMAN (2023)

DECISION & ORDER

In an action to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Suffolk County (William G. Ford, J.), dated May 13, 2020.  The order denied the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint is granted.

In March 2018, the plaintiff commenced this action to recover damages for legal malpractice arising out of the defendants’ prior legal representation of it in connection with a purchase agreement of the plaintiff's restaurant business.  The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground, inter alia, that the complaint failed to state a cause of action.  The plaintiff opposed the motion.  In an order dated May 13, 2020, the Supreme Court denied the defendants’ motion.  The defendants appeal.

“ ‘To state a cause of action to recover damages for legal malpractice, a plaintiff 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 plaintiff actual and ascertainable damages’ ” (Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d 1504, 1505, 131 N.Y.S.3d 89, quoting Dempster v. Liotti, 86 A.D.3d 169, 176, 924 N.Y.S.2d 484;  see Silverman v. Eccleston Law, LLC, 208 A.D.3d 705, 706, 173 N.Y.S.3d 78).  “To establish causation in a legal malpractice action, ‘a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence’ ” (Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d at 1505, 131 N.Y.S.3d 89, quoting Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385).  “ ‘Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative’ ” (Denisco v. Uysal, 195 A.D.3d 989, 991, 146 N.Y.S.3d 813, quoting Bua v. Purcell & Ingrao, P.C., 99 A.D.3d 843, 848, 952 N.Y.S.2d 592;  see York v. Frank, 209 A.D.3d 804, 807, 176 N.Y.S.3d 133).  Here, the plaintiff failed to state a cause of action to recover damages for legal malpractice because the plaintiff's allegation that the restaurant would have had increased profits but for the defendants’ alleged malpractice is conclusory and speculative (see York v. Frank, 209 A.D.3d at 807, 176 N.Y.S.3d 133;  Denisco v. Uysal, 195 A.D.3d at 991, 146 N.Y.S.3d 813).

We need not reach the defendants’ remaining contention in light of our determination.

DUFFY, J.P., GENOVESI, DOWLING and TAYLOR, JJ., concur.