Plaintiff is a victim of a rear-end collision.  The case ends up with a victory for plaintiff, but he sues his attorneys on the theory that they waited too long to move for summary judgment.  Plaintiff alleges that he lost 6 years of interest.  By his calculation he lost 54% of the value of the case.  Can this be legal malpractice?  Yes.  Did Plaintiff support his allegations with sufficient factual material?  No.

Rodriguez v Jacoby & Meyers, LLP  2015 NY Slip Op 02151  Decided on March 19, 2015  Appellate Division, Third Department is an example of analysis in a CPLR 3211 case.  The Courts must afford the complaint a liberal construction, but the favorable treatment is not limitless.

“Turning to the merits, the standard to be applied on a motion to dismiss for failure to state a cause of action is both familiar and well settled — “we must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts fit within any cognizable legal theory” (He v Realty USA, 121 AD3d 1336, 1339 [2014] [internal quotation marks and citations omitted]; see Snyder v Brown Chiari, LLP, 116 AD3d 1116, 1117 [2014]). That said, the “favorable treatment” accorded to a plaintiff’s complaint is not “limitless” (Tenney v Hodgson Russ, LLP, 97 AD3d 1089, 1090 [2012]) and, as such, “conclusory allegations — claims consisting of bare legal conclusions with no factual specificity — are insufficient to survive a motion to dismiss” (Godfrey v Spano, 13 NY3d 358, 373 [2009]; accord Barnes v Hodge, 118 AD3d 633, 633 [2014]; see Wiggins & Kopko, LLP v Masson, 116 AD3d 1130, 1131-1132 [2014]).

“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 [2007], cert denied sub nom. Spiegel v Rowland, 552 US 1257 [2008] [internal quotation marks and citation omitted]; accord Hyman v Schwartz, 114 AD3d 1110, 1112 [2014], lv dismissed 24 NY3d 930 [2014]; see MacDonald v Guttman, 72 AD3d 1452, 1454-1455 [2010]). Although the parties debate whether the decision to bring a summary judgment motion and/or the timing thereof can give rise to a claim for legal malpractice in the first instance (see e.g. Siracusa v Sager, 105 AD3d 937, 938-939 [2013]; Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 846-847 [2012], lv denied20 NY3d 857 [2013]; Hand v Silberman, 15 AD3d 167, 167 [2005], lv denied 5 NY3d 707 [2005]; Palazzolo v Herrick, Feinstein, LLP, 298 AD2d 372, 372-373 [2002]) and, further, whether plaintiff’s damages — in the absence of a final judgment in the underlying personal injury action — are speculative, these issues need not detain us.

To survive defendants’ motion to dismiss, it was incumbent upon plaintiff to, among other things, “plead specific factual allegations establishing that but for counsel’s deficient representation, there would have been a more favorable outcome to the underlying matter” (Dweck Law Firm v Mann, 283 AD2d 292, 293 [2001]; see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 758 [2014]; Tortura v Sullivan Papain Block McGrath & Canavo, P.C., 21 AD3d 1082, 1083 [2005], lv denied 6 NY3d 701 [2005]), i.e., an earlier — and successful — award of partial summary judgment on the issue of liability. This plaintiff failed to do. Noticeably absent from both plaintiff’s complaint and the bills of particulars submitted in opposition to defendants’ motion to dismiss are any factual allegations to support plaintiff’s claim that defendants’ failure to file a motion for partial summary judgment on his behalf prior to December 2009 constituted legal malpractice. Specifically, plaintiff failed to delineate, among other things, the general course and defendants’ overall management of the personal injury action, including when discovery was undertaken and/or completed or whether there were ongoing settlement discussions prior to the filing of the underlying motion. Rather, plaintiff simply alleged — in an entirely conclusory fashion — that “the [subject] motion could have been made at any time once issue was joined” in April 2003. While this theoretically is true (see CPLR 3212 [a]), absent detailed factual allegations documenting the efforts undertaken by defendants over the course of the ensuing six years and the manner in which the litigation progressed, plaintiff simply cannot establish that, had the motion for partial summary judgment been brought prior to December 2009, it would have been successful (compare Fielding v Kupferman, 65 AD3d 437, 441-442 2009]). This absence of proof is fatal to plaintiff’s malpractice claim and, therefore, Supreme Court properly granted defendants’ motion to dismiss upon this ground.”