It is not often that a court allows reargument, states that it misapplied the law, and reverses itself as took place in Orlando v Robinson Brog Leinwand Greene Genovese & Gluck, P.C. 2021 NY Slip Op 32235(U)
November 9, 2021 Supreme Court, New York County Docket Number: Index No. 155048/2020 Judge: Phillip Hom. However, plaintiff’s earlier success is now a dismissal.
“A motion for reargument allows a party to demonstrate that the court overlooked or misapprehended the law or facts pertinent to the original motion (See CPLR 2221[d]; see also Delgrosso v 1325 Limited Partnership, 306 AD2d 241 [2d Dept. 2003]); Foley v Roche, 68
AD2d 558 [!81 Dept. 1979] app denied by 56 NY2d 507 ). Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided or to present arguments different from those originally presented. (See Gellert & Rodner v Gem Community Management, Inc., 20 AD3d 388 [2d Dept. 2005]; see also McGill v Goldman, 261 AD2d 593 [2d Dept. 1999]; Foley v Roche, supra).
Upon reargument, Gallett LLP’ s motion to dismiss is granted. The Court finds that it misapplied the law relative to the cause of action for legal malpractice. Upon reargument, this Court recalls and vacates the portion of its prior Order denying the branch of the motion dismissing the cause of action for legal malpractice and in its stead finds as follows:
“An action for legal malpractice requires proof of three elements: (1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff’s losses; and (3) proof of actual damages” (Global Bus. Inst. v Rivvkin Radler LLP, IOI AD3d 651,651 [1st Dept 2012]
citation omitted). Courts consistently dismiss legal malpractice claims when a plaintiff fails to plead facts supporting causation (Perkins v Norwick, 257 AD2d 48, 51 [1 st Dept 1999]).
In this case, the Orlandos cannot establish causation. The “but for” Gallett LLP’ s malpractice the court would have ruled in the Orlandos favor cannot be established given Justice Engoron’ s holding in the underlying action. Justice Engoron found that even if the tax maps
were considered it is of no consequence because the Appellate Division held that the “unambiguous and clear Declaration and Offering plan to be definitive and dispositive” on the issue of ownership of the Basement Area. Gallett LLP was also appellate counsel and could not have used the tax maps to defend the underlying action because the tax maps were not part of the
appellate record. Since the Orlandos cannot establish that “but for” Gallett LLP’ s negligence, the disposition in the underlying action would have been different, they fail to establish an essential
element of a legal malpractice claim.
Accordingly, Motion Sequence Number 3 for leave to reargue is granted and upon reargument, the remaining branch of Gallett LLP’ s motion to dismiss the cause of action for legal malpractice is granted and the complaint against Gallett LLP is dismissed in its entirety. “