Westchester Hills Golf Club, Inc. v Panken  2017 NY Slip Op 30045(U)  January 10, 2017
Supreme Court, New York County  Docket Number: 155528/2016  Judge: Cynthia S. Kern is a decision on a CPLR 3211 motion in a legal malpractice setting.  We have become  accustomed to reading 3211 decisions where the Court goes well beyond the settled standard and reaches arguments on the “but for” portion of the case or on attorney judgment that go beyond the pale.  Here, Judge Kern assiduously tracks the proper standard and scrutinizes the pleadings.

“Plaintiff operates a golf course, clubhouse and restaurant for its members which is located in White Plains, New York. The full-time bartenders, wait staff and kitchen employees of the restaurant are members of Unite Here Local 100 of New York and Vicinity (the “Union”). Plaintiff retained defendants to be general counsel with respect to plaintiff’s labor and employment issues, specifically to negotiate labor agreements with the Union and to address disputes between plaintiff and those employees who were Union members. Plaintiff alleges that defendants negligently handled two employee disputes between 2009 and 2013 regarding Timothy Cremin (“Cremin”), a bartender and Union member, and Mark Wills (“Wills”), a line cook/chef and Union member. ”

“Legal malpractice is defined as the failure of an attorney to “exercise that degree of skill commonly exercised by an ordinary member of the legal community.” Estate of Nevelson v. Carro, Spanbock, Kaster & Cuijfo, 259 A.D.2d 282, 284 (1st Dept 1999). To sufficiently plead a claim for legal malpractice, a plaintiff must allege “(l) that the attorney was negligent; (2) that such negligence was the proximate cause of plaintiffs losses; and (3) proof of actual damages.” Brooks v. Lewin, 21 A.D.3d 731, 734 (1st Dept 2005). The court first turns to defendants’ motion to dismiss the complaint on the ground that the complaint fails to sufficiently allege that defendants’ conduct in both the Cremin matter and the Wills matter was the proximate cause of plaintiffs damages. In order to sufficiently allege proximate cause in a legal malpractice action, a plaintiff must allege “that but for the attorney’s negligence, (plaintiff] would have prevailed in the underlying matter or would not have sustained any ascertainable damages.” Brooks, 21 A.D.3d at 734.

In the present case, this court finds that the complaint sufficiently alleges that defendants’ conduct in the Wills matter was the proximate cause of plaintiffs damages. The complaint alleges that “but for [defendants’] malpractice, … Wills'[] grievance would have been dismissed” and that plaintiff would not have been damaged. Specifically, the complaint alleges that defendants’ conduct in failing to move to stay the arbitration based on the fact that Wills was not covered under the CBA and in failing to assert the defense of untimeliness, which was then waived, proximately caused plaintiffs damages in that plaintiff had to prepare for the scheduled arbitration hearing, engage in settlement negotiations with Wills and eventually settle the matter with Wills, causing plaintiff to incur damages from the settlement as well as the payment ofa $2,000 arbitrator fee and the fee for late cancelation of the arbitration. The complaint further asserts that but for defendants’ failure to properly litig!lte the Wills matter, the grievance would have been dismissed and plaintiff would not have negotiated with Wills or agreed to settle Wills’ grievance. To the extent defendants assert that the portion of the complaint that alleges malpractice with respect to the Wills matter must be dismissed based on the fact that plaintiff voluntarily agreed to settle the Wills matter, such assertion is without merit. “Where the termination [of the underlying case] is by settlement rather than by a dismissal or adverse judgment, malpractice by the attorney is more difficult to establish, but a cause of action can be made out if it is shown that assent by the client to the settlement was compelled because prior misfeasance or nonfeasance by the attorneys left no other recourse.” Becker v. Julien, Blitz & Schlesinger, P.C., 95 Misc.2d 64, 66 (Sup. Ct. N.Y. County, Special Term, 1977)(emphasis added). Indeed, “the cause of action for legal malpractice must stand or fall on its own merits, with no automatic waiver of a plaintiffs right to sue for malpractice merely because plaintiff had voluntarily agreed to enter into a stipulation of settlement.” Id. Here, plaintiff has alleged that it negotiated a settlement with Wills based on defendants’ negligence in litigating the Wills matter. ”

“To the extent defendants assert that the complaint should be dismissed on the ground that it fails to set forth the amount of damages purportedly sustained by plaintiff in the Wills matter, such assertion is without merit as defendants have failed to provide any basis for the proposition that plaintiff is required to plead the exact amount of damages it has sustained. With regard to damages, all that a plaintiff is required to plead in a legal malpractice action is that it has sustained actual and ascertainable damages. The court next turns to defendants’ motion to dismiss the complaint on the ground that defendants’ alleged conduct is protected by the attorney judgment rule. Under the attorney judgment rule, “[a]ttorneys may select among reasonable courses of ac.tion in prosecuting their clients’ cases without thereby committing malpractice so that a purported malpractice claim that amounts only to a client’s criticism of counsel’s strategy may be dismissed.” Dweck Law Firm v. Mann, 283 A.D.2d 292, 293 (I st Dept 2001)(internal citation omitted). Indeed, “[a]ctions or conduct which constitute an error of judgment or are found to constitute one of several alternative ways in which a reasonable prudent attorney would proceed, are not actionable as legal malpractice.” Gonzalez v. Ellenberg, 5 Misc.3d 1023 at *6 (Sup. Ct. N.Y. County 2004). “