Not surprisingly, an unopposed motion to dismiss is often granted. The lack of opposition sometimes is because Plaintiff is pro-se, sometimes because of law office error. Here, in Melendez v Renfroe, Driscoll & Foster, LLP 2021 NY Slip Op 31462(U) April 29, 2021 Supreme Court, New York County Docket Number: 157344/2019 Judge: W. Franc Perry the motion is the second of two; the first motion got one set of attorneys out of the case.
“Here, Plaintiffs only allegations against King are that he failed to demand a jury trial in the Surrogate’s Court action and that he advised Plaintiff to retain the former Defendants as trial counsel. (NYSCEF Doc No. 1, Complaint, at iii! 15, 20.) The rest of the allegations against King and the Law Offices of Paul R. King, P.C. are stated as allegations against King and the former defendants as a whole: namely, that Defendants were negligent in failing to call certain witnesses to the stand and for failing to submit a gift tax return into evidence. (Id. at¶ 33, 35, 41, 42.)
In granting Defendants Renfroe, Driscoll & Foster LLP and Patrick Foster’s motion to dismiss, this court ha; already decided. that Plaintiff failed to set forth a cause of action for legal malpractice because he did not show that “but for” the alleged malpractice, he would have
prevailed in the underlying action. First, this court held that the allegations against the Defendants as a whole were insufficient (see NYSCEF Doc No. 40) and as such those allegations are likewise
insufficient as alleged against King as an individual and as against the Law Offices of Paul R. King P.C.
Further, Plaintiff’s only specific allegation against King, that he was negligent in failing to timely demand a jury trial, is insufficient to allege a claim for legal malpractice. Plaintiff simply cannot prove that “but for” the delayed demand, he would have succeeded in the underlying action,
especially considering the record before the Surrogate’s Court and the court’s findings. (See generally NYSCEF Doc Nos. 51, 53, Transcript and Decision.) Even accepting as true the allegations asserted against King and Law Offices of Paul R. King, P.C., and considering the documentary evidence, Plaintiff’s complaint fails to state a cause of action for legal malpractice because it does not sufficient allege that Defendants’ negligence was the proximate cause of Plaintiff’ damages”.