Cite as: Francis v. Mirman, 29993/10, NYLJ 1202583703771, at *1 (Sup., KI, Decided January 3, 2013)

Justice Brenadette Bayne

Decided: January 3, 2013

The following papers numbered 1 to 4 read on this motion:

Papers Numbered

Notice of Motion/Affidavits (Affirmations) Annexed 1

Notice of Cross-Motion/Affidavits (Affirmations) Annexed 2

Defendants' Affirmation in Opposition & Reply 3

Plaintiff's Affirmation in Reply 4





In this action sounding in legal malpractice, defendants MIRMAN, MARKOVITS & LANDAU, P.C., MICHELE S. MIRMAN, ESQ., THOMAS P. MARKOVITS, ESQ., and RONALD J. LANDAU, ESQ., (hereinafter referred to as "defendants"), move this Court for an Order dismissing the plaintiff's complaint, with prejudice, in its entirety, "[p]ursuant to




CPLR§3211(a)(7), for failure to state a cause of action as a matter of law", and "pursuant to CPLR§3211(a)(1), based upon documentary evidence".

In support of their motion, the defendants contend that the plaintiff's complaint should be dismissed because the "[p]laintiff fails to allege facts with any reasonable degree of specificity supporting his claim of negligent representation and/or the improper advice given by the moving defendants", and because "[t]he complaint supplies no factual allegations outlining how the moving defendants failed to conform to the applicable standard of care". The defendants argue that the plaintiff's complaint is "insufficient to withstand dismissal, as it lacks credible and specific facts regarding the negligence or legal malpractice purportedly committed by the moving defendants".

The defendants further contend that the "[p]laintiff's legal malpractice claim must also fail because the documentary evidence conclusively establishes that the decision to settle was one that he [the plaintiff] made himself. The settlement agreement explicitly defines the terms of the settlement and bears plaintiff's signature". The defendants argue that they "[c]annot be held liable for a decision made by plaintiff without some allegation of fraud or duress" and that "[t]he documentary evidence clearly establishes that plaintiff consented to the settlement, and the complaint is bare of any allegation of fraud". Ultimately, the defendants contend that "[w]ithout such allegations, plaintiff fails to plead an actionable legal malpractice claim as a matter of law".

In opposition to the defendants' motion, the plaintiff cross moves this Court for an Order, pursuant to CPLR §3025(b), granting the plaintiff leave to amend his complaint. In support of his motion, the plaintiff argues that "[t]here is no prejudice to the defendants were this Court to grant plaintiff's motion to amend the complaint, whereas plaintiff would be substantially




prejudiced were the Court to deny plaintiff's application and grant defendants' motion to dismiss based upon documentary evidence". The plaintiff generally argues that the defendants' motion to dismiss should be denied because the defendants departed "[f]rom good and accepted practices in the field of personal injury law" as a result of their alleged failure to "know the lien amount and to confirm with plaintiff what that lien amount was when they settled plaintiff's case"; as well as their alleged "failure to negotiate or even attempt to negotiate a reduction in the Law Bucks lien"; and, finally, as a result of the defendants' allegedly "false representations to plaintiff and to Law Cash that he would net $100,000 from the gross settlement amount and that there were no other liens despite the fact that Law Bucks had a lien of approximately $96,000, in order to induce Law Cash to advance plaintiff money and to induce plaintiff to sign the general release".

The Court additionally notes that, other than stating his contentions and arguments, the plaintiff's motion papers offer no legal or judicial authority, regarding his request to amend his complaint.

In opposition to the plaintiff's cross motion and in reply to the opposition to their motion, the defendants initially reiterate their contention that the plaintiff cannot satisfy the requirements for a claim for legal malpractice; that his opposition papers fail to cure "[t]he plaintiff's fatal pleading deficiencies", and that "[h]is verified complaint should be dismissed in its entirety as a matter of law". Specifically, the defendants argue that the complaint should be dismissed because "[t]he plaintiff's separate loan transactions were outside the scope of the defendants' representation" and because the "[p]laintiff has failed to allege any facts tending to show that the defendants were in fact negligent in their representation of plaintiff in the underlying action". Finally, the defendants argue that the "[p]laintiff has failed to allege 'but for' with sufficient




detail" to maintain an action sounding in legal malpractice; and that he "[h]as failed to allege facts showing actual and ascertainable damages", which is also a requirement for a legal malpractice claim.

In opposition to the portion of the plaintiff's cross-motion seeking leave of the Court to file and serve an amended complaint, the defendants argue that after reviewing "[t]he plaintiff's proposed amended verified complaint, it is apparent that the proposed amendments are not based upon an additional transaction or occurrence as permitted under CPLR 3025(b). The amendments are merely an amplified restatement of the allegations previously asserted herein against the defendants". The defendants further contend that "[n]one of the additional facts, which if proven at trial, would sustain a claim for legal malpractice as against the defendants, and therefore plaintiff's instant application is not permissible under section 3025(b) of the CPLR, and should be denied in its entirety". The defendants also argue that the "[p]laintiff's proposed duress and fraud claims are duplicative of his legal malpractice claim, warranting dismissal of plaintiff's cross motion for leave to amend his verified complaint".

Finally, the defendants argue that "[g]iven the uncorrected pleading deficiencies of the plaintiff's proposed legal malpractice claim, along with the redundancy of the proposed duress and fraud claims, it is respectfully submitted that plaintiff's cross motion for leave to serve and file an amended verified complaint should be denied, as futile, in its entirety".

Although the plaintiff offers papers, which are labeled as a reply to the defendants' opposition to his motion to amend his complaint, a review of said papers by the Court reveals that the arguments contained therein continue to address and respond to the plaintiff's motion for dismissal and do not respond to the plaintiff's arguments as to why the motion to amend the




complaint should be denied. As such, these papers constitute a sur-reply, which this Court will not consider.

After all of the above papers were submitted, and the parties first appeared for oral argument, the Court directed the parties to conduct a deposition of one of the defendants, which took place in May of 2012. Thereafter, in June of 2012, the plaintiff submitted another "supplemental affirmation in further opposition to the defendants' motion to dismiss and in further support of motion to amend". A brief review of this submission reveals, however, that other than offering a copy of the defendant's deposition transcript, the plaintiff merely reiterates the arguments that he previously made in opposition to the defendant's motion to dismiss his complaint and continues to offer little to no argument as to why his cross motion should be granted.


In considering the sufficiency of a pleading subject to a motion to dismiss for failure to state a cause of action, the Court must determine whether, accepting as true the factual averments of the complaint, the plaintiff can succeed on any reasonable view of the facts stated, and the Court is required to accord the plaintiff the benefit of all favorable inferences which may be drawn from the pleading, without expressing an opinion as to whether the plaintiff can ultimately establish the truth of the allegations before the trier of fact. See Campaign for Fiscal Equity, Inc. v. State, 86 N.Y.2d 307, 631 N.Y.S.2d 565, 655 N.E.2d 661, (1995). When a cause of action may be discerned, no matter how poorly stated, the complaint should not be dismissed for failure to state a cause of action. L. Magarian & Co., Inc. v. Timberland Co., 245 A.D.2d 69, 665 N.Y.S.2d 413, (1st Dept., 1997). However, vague and conclusory allegations are insufficient to




sustain a breach of contract cause of action. Fowler v. American Lawyer Media, Inc., 306 A.D.2d 113, 761 N.Y.S.2d 176, (1st Dept., 2003).

A court may dismiss a complaint that fails to conform to the requirements that pleadings consist of plain and concise statements in consecutively numbered paragraphs, furnish sufficient particularity to give notice of the transactions, occurrences, or series of occurrences intended to be proved, and include material elements of each cause of action. A complaint may be dismissed if it fails to include the material elements of each cause of action, as such a failure prejudices the defendant by rendering said defendant unable to prepare a defense. Further, a cause of action must fail where the complaint is devoid of factual allegations which sufficiently demonstrate a causal relationship between the purported conduct on the part of the defendants and the damages suffered by the plaintiff. CPLR §§3013, 3014.

Legal malpractice consists of the failure of an attorney to exercise that degree of skill commonly exercised by an ordinary member of the legal community, proximately resulting in damages to the client. Arnav Industries, Inc. Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, L.L.P., 96 N.Y.2d 300, 727 N.Y.S.2d 688, 751 N.E.2d 936, (NYS Court of Appeals, 2001). The tripartite test governing the establishment of a prima facie case for legal malpractice includes sufficient allegations that the attorney was negligent, that the attorney's negligence was the proximate cause of the plaintiff's damages, and that the plaintiff suffered actual damages as a direct result of the attorney's actions. Tibodeau v. Abrahams, 260 A.D.2d 367, 687 N.Y.S.2d 696, (2nd Dept., 1999); Pirro & Monsell, P.C. v. Freddolino, 204 A.D.2d 613, 614 N.Y.S.2d 232 (2nd Dept., 1994).

A cause of action for legal malpractice may not be sustained where the plaintiff failed to




show any damage or loss attributable to the alleged malpractice. A mere speculation of loss resulting from the attorney's alleged omissions is insufficient to sustain a prima facie case of legal malpractice. Giambrone v. Bank of New York, 253 A.D.2d 786, 677 N.Y.S.2d 608, (2nd Dept., 1998); Luniewski v. Zeitlin, 188 A.D.2d 642, 591 N.Y.S.2d 524, (2nd Dept., 1992); Brown v. Samalin & Bock, P.C., 168 A.D.2d 531, 563 N.Y.S.2d 426, (2nd Dept., 1990). Damages alleged by the plaintiff in a legal malpractice claim must be actual and ascertainable. Giambrone v. Bank of New York, supra.; Perkins v. Norwick, 257 A.D.2d 48, 693 N.Y.S.2d 1(1st Dept., 1999).

The elements of a legal malpractice claim, arising out of the negligent conduct of litigation, are the existence of an attorney-client relationship, negligence on the part of the attorney or some other conduct in breach of that relationship, proof that the attorney's conduct was the proximate cause of the injury to the plaintiff, and proof that "but for" the alleged malpractice the plaintiff would have been successful in the underlying action. Hanlin v. Mitchelson, 794 F.2d 834, 5 Fed. R.Serv.3d 969, (U.S. Court of Appeals, 2nd Cir., 1986); Wald v. Berwitz, 62 A.D.3d 786, 880 N.Y.S. 2d 293, (2nd Dept., 2009).

In the context of the negligent giving of advice, the elements of a malpractice claim which must be adequately pled and proven, are that within the context of an attorney client relationship, the attorney negligently, gave improper advice, which was the proximate cause of the client doing things which he or she would not have otherwise done, and resulting in harm and damage to the client. Marks Polarized Corp. v. Solinger & Gordon, 124 Misc. 2d 266, 476 N.Y.S.2d 743, (Sup. Ct., 1984). However, a cause of action for malpractice for the negligent giving of advice may not be sustained where the plaintiff fails to show any damage or loss




attributable to such alleged malpractice or where the advice is correct or accurate or is not unreasonable. Colleran v. Rockman, 275 A.D.2d 222, 712 N.Y.S.2d 108 (1st Dept., 2000); Cahill v. Ryan, 266 A.D.2d 75, 699 N.Y.S.2d 8(1st Dept., 1999); Freese v. Schwartz, 203 A.D.2d 513, 611 N.Y.S.2d 37 (2nd Dept., 1994); Zeller v. Copps, 294 A.D.2d 683, 741 N.Y.S.2d 343 (3rd Dept., 2002); Tinter v. Rapaport, 253 A.D.2d 588, 677 N.Y.S.2d 325 (1st Dept., 1998); Weiler v. Kuba & Kuba, 251 A.D.2d 118, 674 N.Y.S.2d 322 (1st Dept., 1998).

A cause of action challenging the reasonableness and adequacy of advice given by an attorney to a client appears to fall more clearly within the classical definition of legal malpractice than breach of contract. However, an attorney is not an insurer or guarantor of his or her advice, since no attorney is bound to know all the law which the court may see fit to apply in the particular case. Keller v. Barry, 84 A.D.2d 575, 443 N.Y.S.2d 436 (2nd Dept., 1981).

A client's causes of action against a law firm, for breach of contract and for fraudulent misrepresentation of legal expertise, may properly be dismissed as duplicative of a cause of action for legal malpractice, where the contract claim did not involve a promise to achieve a specific result, and instead involved claims of failure to exercise due care or abide by professional standards that are also present in the malpractice action, and the same allegations of misrepresentation and nondisclosure are involved in both the malpractice and misrepresentation causes of action. Sage Realty Corp. v. Proskauer Rose LLP, 251 A.D.2d 35, 675 N.Y.S.2d 14(1st Dept., 1998).

After hearing the oral arguments of the parties, and upon review of the papers submitted, this Court finds that the verified complaint is devoid of factual allegations which sufficiently demonstrate a causal relationship between the purported conduct on the part of defendants and




the damages that the plaintiff claims that he suffered. This being the case, each of the causes of action asserted therein, must fail. See Foley v. D'Agostino, 21 A.D.2d 60, 248 N.Y.S.2d 121, (1st Dept., 1964). The cause of action for legal malpractice fails to allege specific facts and detail to show that defendants acted negligently in the provision of legal representation, but rather contains only conclusory allegations and the Court finds that the plaintiff has failed to satisfactorily plead any actual or ascertainable damages as a result of the alleged malpractice of the defendants.

This Court is also of the opinion that the proposed causes of action for breach of fiduciary duty, fraud, and duress, as set forth in plaintiff's proposed amended complaint, are also insufficiently pled. They are duplicative of the plaintiff's claim for legal malpractice, and the plaintiff's cause of action alleging breach of fiduciary duty fails to satisfy the specificity requirements of CPLR §3016(b).

The documentary evidence offered by the defendants also strongly supports dismissal of the plaintiff's complaint. Upon review of the loan agreement contracts, this Court finds that the plaintiff entered into each and every loan agreement involved in this case of his own free will and accord. The contracts between the plaintiff and these funding companies are quite detailed and when the plaintiff entered into these contracts, he was required to initial each and every page to demonstrate that he had read the page and understood the provisions contained therein. Not only do the contracts clearly state the amount that the plaintiff borrowed in each instance, they also clearly and unambiguously state how much the plaintiff will be required to pay back to the funding company upon resolution of his underlying personal injury case. The fact that the plaintiff entered into another loan contract after the case had been settled is further evidence of




the fact that the plaintiff was well aware of his actions.

The Court also notes that, contrary to the plaintiff's claim that the defendants made no effort to reduce the amount of the lien that the plaintiff owed to the funding companies, a review of the closing statement from the underlying personal injury action, prepared by the defendants and provided to the plaintiff, clearly indicates that the defendants successfully negotiated a reduction in the amount of the lien held by one of the funding companies by almost $2,500.00. This documentary proof is supported by the deposition testimony of the defendants' witness, who testified that "[w]e made every effort to reduce the LawBucks lien and they would not — we don't know who these people are. We did not ever do business with them before. I don't believe they were willing to negotiate at all other than a very, very minor amount".

A review of the retainer agreement utilized by the defendants for their representation of the plaintiff in the underlying personal injury action reveals that, although it fails to address loans from third parties, it is clearly confined to representation of the plaintiff for injuries sustained as a result of an accident that occurred on September 1, 2007. The fact that the defendants signed off on the loan agreement contracts, in the opinion of this Court, constitutes nothing more than an acknowledgment by the defendants that the loan company was holding a lien against the proceeds of the plaintiff's underlying personal injury action, and it was not an agreement to represent the plaintiff for any purposes in connection with the loan agreements that the plaintiff entered into with non-party funding companies.

The testimony of the defendants' witness demonstrates that the plaintiff entered into these contracts on his own and that the defendants neither referred the plaintiff to, nor recommended the utilization of, a funding company at any time. Short of their acknowledgment of the lien, no




evidence has been offered that would prove that the defendants had any knowledge about, or participated in, the execution of the loan contracts between the plaintiff and these funding companies.

Based upon the documentary evidence, which clearly demonstrates that the plaintiff was fully aware of his actions when he entered into the various loan agreements that resulted in large liens being placed against the proceeds of his underlying personal injury case, this Court is of the opinion that no amendments to the plaintiff's complaint will enable him to successfully plead a case of legal malpractice against these defendants. This evidence, combined with the vague and conclusory allegations contained in the plaintiff's proposed amended complaint, compels this Court to grant the defendants motion in its entirety and to deny the plaintiff's cross motion in its entirety.


Accordingly, it is

ORDERED, that defendants motion for dismissal of the plaintiff's complaint, is granted, in its entirety; and it is further,

ORDERED, that the plaintiff's cross motion for leave to file and serve an amended complaint is denied in its entirety.

This constitutes the Decision and Order of the Court.