May Dock Lane, LLC v Harras Bloom & Archer, LLP 2023 NY Slip Op 06244 Decided on December 6, 2023 Appellate Division, Second Department illustrates the depth to which the Courts and the AD will go in considering a CPLR 3211 motion. We submit that this depth is not matched in medical malpractice cases, nor in personal injury or even commercial litigation matters.
“The plaintiff commenced this action, inter alia, to recover damages for legal malpractice against, among others, Harras Bloom & Archer, LLP, and Paul Bloom (hereinafter together the defendants). The plaintiff alleged, among other things, that it retained the defendants to assist with its purchase of certain real property, which the plaintiff intended to subdivide into four lots, and that due to the defendants’ deficient representation, the plaintiff was only able to subdivide the property into three lots. The plaintiff also alleged that due to the defendants’ deficient representation, the owners of adjacent property refused to honor an easement to use a dock and beach area on their property for two of the three subdivided lots on the property acquired by the plaintiff. The defendants moved, inter alia, pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice insofar as asserted against them. In an order entered September 29, 2021, the Supreme Court, among other things, denied that branch of the defendants’ motion. The defendants appeal.”
“Here, even accepting the facts as alleged in the amended complaint to be true and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d at 87-88), the amended complaint failed to state a cause of action for legal malpractice. To the extent the amended complaint alleged that due to the defendants’ deficient representation, the plaintiff could not make use of an easement on the adjacent property for two of the three subdivided lots, the plaintiff’s allegations were conclusory and speculative (see 126 Main St., LLC v Kriegsman, 218 AD3d 524). Moreover, while the amended complaint alleged that a typo in an assignment of easement prepared by the defendants proximately caused the plaintiff to be subjected to a separate lawsuit regarding the easement, the defendants’ evidentiary submissions demonstrated that the typo was not a basis for the separate action.
Furthermore, the evidentiary submissions demonstrated that the plaintiff chose to submit a new proposal to subdivide its property into three lots following a suggestion made during a Planning Board meeting to consider changing the plan from a four-lot subdivision to a three-lot subdivision. Thus, the defendants demonstrated that material facts alleged in the amended complaint with respect to the allegation that the defendants proximately caused the plaintiff to only be able to subdivide the property into three lots were not facts at all, and that no significant dispute exists regarding them (see 50 Clarkson Partners, LLC v Old Republic Natl. Tit. Ins. Co., 206 AD3d 956, 958). Moreover, the amended complaint failed to set forth facts sufficient to allege that the defendants’ representation proximately caused the plaintiff to incur expenses associated with delays in the approval of the plaintiff’s application for subdivision.”