KOLYER v. SALLAH (2026)

DECISION & ORDER

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Maureen T. Liccione, J.), dated September 20, 2024.  The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for legal malpractice arising out of the defendants' legal representation of her in a post-divorce matrimonial proceeding.  The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground, inter alia, of failure to state a cause of action.  The plaintiff opposed the motion.  In an order dated September 20, 2024, the Supreme Court granted the defendants' motion.  The plaintiff appeals.

“Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (GLD3, LLC v. Albra, 241 AD3d 1288, 1290 [internal quotation marks omitted] ).

“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” (126 Main St., LLC v. Kriegsman, 218 AD3d 524, 524 [internal quotation marks omitted];  see Delollis v. Archer, 128 AD3d 755, 756).  To establish causation, “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” (126 Main St., LLC v. Kriegsman, 218 AD3d at 524 [internal quotation marks omitted];  see Katsoris v. Bodnar & Milone, LLP, 186 AD3d 1504, 1505).  “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” (Katsoris v. Bodnar & Milone, LLP, 186 AD3d at 1506 [internal quotation marks omitted];  see Ofman v. Richland, 234 AD3d 865, 868;  Maroulis v. Sari M. Friedman, P.C., 153 AD3d 1250, 1251).

Here, the Supreme Court properly determined that dismissal of the complaint was warranted pursuant to CPLR 3211(a)(7), on the ground of failure to state a cause of action.  The plaintiff's allegation that she would have received a larger amount of her former husband's disability pension but for the defendants ‘ negligence was conclusory and speculative under the circumstances and in light of the evidentiary material submitted and considered on the defendants' motion (see York v Frank, 209 AD3d 804, 807;  Denisco v Uysal, 195 AD3d 989, 991;  Maroulis v Sari M. Friedman, P.C., 153 AD3d at 1252).

The plaintiff's remaining contention is without merit.

CHAMBERS, J.P., VOUTSINAS, TAYLOR and HOM, JJ., concur.