Sure, the Second Department is busy, and there is a constant and steady stream of cases coming before it, 20 every day.  Nevertheless, a couple of facts in the decision might help practitioners in their everyday legal lives.

Barker v Amorini  2014 NY Slip Op 06931  Decided on October 15, 2014  Appellate Division, Second Department is an example of a decision that fails to illuminate the path.  Case is dismissed in Supreme Court on a CPLR 3211 motion, and modified by the Second Department. Why?  We have no clue.

"The defendants, among other things, moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the causes of action alleging conversion and legal malpractice. The Supreme Court, upon renewal, inter alia, granted those branches of the defendants’ motion, concluding that the plaintiff was judicially estopped from asserting the cause of action alleging conversion and that, in any event, she failed to state a cause of action in that regard. The court also directed the dismissal of the cause of action alleging legal malpractice for failure to state a cause of action.

"On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff’s allegations are accepted as true and accorded the benefit of every possible favorable inference" (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996; see Leon v Martinez, 84 NY2d 83, 87). However, on a motion to dismiss pursuant to CPLR 3211(a)(7), "bare legal conclusions are not presumed to be true" (Khan v MMCA Lease, Ltd., 100 AD3d 833, 833; see Goel v Ramachandran, 111 AD3d 783, 791-792). To prevail on a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), the documentary evidence which forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Parekh v Cain, 96 AD3d 812, 815).

The Supreme Court also properly directed the dismissal of the cause of action alleging legal malpractice. To recover damages in a legal malpractice action, a plaintiff must establish "that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301; see Benishai v Epstein, 116 AD3d 726, 727). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Benishai v Epstein, 116 AD3d at 727).

Here, affording the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d at 87-88), the complaint was insufficient to state a cause of action alleging legal malpractice. The plaintiff failed to specifically allege facts supporting a claim that, but [*2]for the defendants’ alleged negligence, the plaintiff would not have incurred any damages (see Benishai v Epstein, 116 AD3d at 728; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083). Accordingly, the Supreme Court, upon renewal, properly granted that branch of the defendants’ motion which was to dismiss the cause of action alleging legal malpractice, which was asserted by the plaintiff both in her individual capacity and derivatively on behalf of the LLC."