The first set of attorneys obtained dismissal in 2014. Hyman v. Schwartz, 2014 NY Slip Op 01362 [114 AD3d 1110]. “In August 2007, plaintiff—then a Cornell University graduate student—was charged with violating the University’s Campus Code of Conduct by allegedly harassing a professor. Following disciplinary proceedings, the University’s Hearing Board sustained the harassment charge and issued a penalty, which was, apart from a slight modification, affirmed by the University’s Review Board. Plaintiff then retained defendant Arthur Schwartz to represent her in a CPLR article 78 proceeding challenging the University’s determination. In addition, Schwartz represented plaintiff in a Title IX claim (see 20 USC § 1681 et seq.). After both of those matters were unsuccessful (Matter of Hyman v Cornell Univ., 82 AD3d 1309 ; Hyman v Cornell Univ., 834 F Supp 2d 77 ), plaintiff commenced the instant action against Schwartz, defendant Schwartz, Lichten & Bright, PC (hereinafter the law firm)—Schwartz’s former and now dissolved law firm—and defendants Stuart Lichten and Daniel Bright—his former partners—seeking damages for negligent and intentional infliction of emotional distress and legal malpractice. In the same complaint, plaintiff also challenged an arbitration award made in Schwartz’s favor in connection with a fee dispute between Schwartz and plaintiff.”
Now, the second (and last) attorneys have won dismissal. Hyman v Burgess , 2015 NY Slip Op 01687, Decided on February 26, 2015 Appellate Division, Third Department.
“Plaintiff first asserts that Supreme Court erred in denying her motion to dismiss defendant’s counterclaims. A motion to dismiss for failure to state a cause of action can be granted only where the facts alleged do not “fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 ; see Lewis v DiMaggio, 115 AD3d 1042, 1043 ; Brooks v Key Trust Co. N. A., 26 AD3d 628, 629-630 , lv dismissed 6 NY3d 891 )[FN2]. As to defendant’s breach of contract counterclaim, she alleged that the parties executed enforceable retainer agreements, defendant performed professional services under those agreements and plaintiff failed to perform, thereby causing defendant to sustain damages. Affording defendant’s counterclaims a liberal construction, accepting the allegations as true and giving defendant “the benefit of every possible inference,” we determine that she has stated a viable cause of action against plaintiff for breach of contract (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 ; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 ; Torok v Moore’s Flatwork & Founds., LLC, 106 AD3d 1421, 1422 ). However, with regard to defendant’s counterclaim that plaintiff was unjustly enriched by her refusal to remit necessary payments for the legal services and related expenses that defendant provided, the assertions raised in defendant’s breach of contract counterclaim echo this equitable claim and, therefore, it must be dismissed (see Corsello v Verizon N.Y., Inc., 18 NY3d 777, 790-791 ; Samiento v World Yacht Inc., 10 NY3d 70, 81 ).
Defendant’s counterclaim of quantum meruit “requires a showing of ‘a [party]’s performance of services in good faith, acceptance of those services by [the other party], an expectation of compensation and proof of the reasonable value of the services provided'” (Rafferty Sand & Gravel, LLC v Kalvaitis, 116 AD3d 1290, 1291-1292 , quoting DerOhannesian v City of Albany, 110 AD3d 1288, 1292 , lv denied 22 NY3d 862 ). Accepting defendant’s allegations as true, namely that she provided plaintiff with legal services, in good faith and with the understanding that payment would be remitted, and that such services were accepted by plaintiff without the provision of due compensation, we find that defendant stated a cognizable equitable claim for quantum meruit (see Rafferty Sand & Gravel, LLC v Kalvaitis, 116 AD3d at 1291-1292; Venture Silicones, Inc. v General Elec. Co., 14 AD3d 924, 925 ).
Turning our attention to defendant’s cross motion seeking dismissal of the amended complaint, we conclude that Supreme Court properly dismissed plaintiff’s legal malpractice cause of action on the merits. “‘In order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action “‘but for'” the attorney’s negligence'” (Leder v Spiegel, 9 NY3d 836, 837  cert denied sub nom Spiegel v Rowland, 552 US 1257 , quoting AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 ; accord Hyman v Schwartz, 114 AD3d at 1112; see [*2]Kaufman v Medical Liab. Mut. Ins. Co., 121 AD3d 1459, 1460 ). Although plaintiff maintains that defendant’s professional competence was deficient and failed to conform with
the requirements of the parties’ retainer agreements, she does not allege, to any degree, that defendant’s purported shortcomings precluded her success in the litigation at issue or caused her to sustain ascertainable damages (see Arnold v Devane, 123 AD3d 1202, 1204 ; MacDonald v Guttman, 72 AD3d 1452, 1455 ; Tabner v Drake, 9 AD3d 606, 610 ). Having failed to plead an essential element of a legal malpractice cause of action, Supreme Court properly granted defendant’s motion to dismiss this claim (see Hyman v Schwartz, 114 AD3d at 1112; compare Snyder v Brown Chiari, LLP, 116 AD3d 1116, 1116-1117 ; Alaimo v McGeorge, 69 AD3d 1032, 1034 ). Likewise, the court’s dismissal of plaintiff’s claims sounding in, among other things, unjust enrichment, breach of contract and breach of fiduciary duty — all of which were encapsulated within and entirely duplicative of plaintiff’s legal malpractice cause of action — was correct (see Adamski vLama, 56 AD3d 1071, 1072-1073 ; Guiles v Simser, 35 AD3d 1054, 1055 ).“