Is it that Plaintiff could not articulate a reason why Defendant made a mistake that caused him damage? Is it that the Appellate Division just didn’t like the case and agreed that it should be dismissed? Did the attorneys make a subjectively and objectively reasonable choice of strategy that just didn’t work? We’ll never know.
Siracusa v Sager 2013 NY Slip Op 02563 Decided on April 17, 2013 Appellate Division, Second Department stands for the proposition that it might be any of these three.
"Initially, we agree with the plaintiff’s contention that the Horn defendants did not establish their entitlement to dismissal of the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1). "A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) will be granted only if the documentary evidence submitted by the defendant utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law" (Bodden v Kean, 86 AD3d 524, 526; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 810). Here, the evidence submitted by the Horn defendants [*2]either was not documentary within the meaning of CPLR 3211(a)(1) or failed to utterly refute the plaintiff’s allegations and conclusively establish a defense as a matter of law (see Rietschel v Maimonides Med. Ctr., 83 AD3d at 811; Fontanetta v John Doe 1, 73 AD3d 78, 84-85; see also Bodden v Kean, 86 AD3d at 526).
However, the Supreme Court correctly granted the Horn defendants’ motion to dismiss the complaint insofar as asserted against them to the extent that it was predicated on CPLR 3211(a)(7), as well as the separate motion of the defendants Audrey Sager, Steven Gellerman, and Sager & Gellerman, Esq., to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(7).
"On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704; see Leon v Martinez, 84 NY2d 83, 87; Rietschel v Maimonides Med. Ctr., 83 AD3d 810).
To succeed in a legal malpractice action, a plaintiff must prove that his or her attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, and that this failure proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Markowitz v Kurzman Eisenberg Corbin Lever & Goodman, LLP, 82 AD3d 719; Frederick v Meighan, 75 AD3d 528, 531; Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 640-641).
Here, the plaintiff’s allegations with respect to whether the defendants exercised the degree of care, skill, and diligence commonly possessed by a member of the legal community amounted to no more than his dissatisfaction with their "strategic choices" and, thus, as a matter of law, did not support a malpractice claim (Albanese v Hametz, 4 AD3d 379, 380; see Rosner v Paley, 65 NY2d 736, 738; Bernstein v Oppenheim & Co., 160 AD2d 428, 430-431; cf. Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562). In any event, the complaint fails to set forth facts sufficient to allege that the defendants’ purported negligence proximately caused the plaintiff to sustain actual and ascertainable damages (see Wald v Berwitz, 62 AD3d 786). "