Plaintiffs, especially those who do not regularly dabble in legal malpractice tend to think that more is better…more causes of action, more theories of the case, etc.  Often these complaints have a nugget of meritorious fact, but they will be cleaned out by the court.  Such is the case in  Martin v Claude Castro & Assoc. PLLC  2016 NY Slip Op 31183(U)  June 24, 2016  Supreme Court, New York County  Docket Number: 161428/2014  Judge: Gerald Lebovits where the complaint lacks the basic “but for” allegation, yet has multiple duplicitive causes of action.  In the end the LM cause of action remains; all else is dismissed.

“Plaintiffs brought this action asserting seven causes of action – legal malpractice, breach of fiduciary duty, breach of written contract, negligence, breach of oral escrow agreement, conversion, and disgorgement of legal fees. Plaintiffs hired defendants to represent them in two summary nonpayment proceedings plaintiffs’ landlord brought against plaintiffs in 2010 in Housing Court (the L&T Matters). Defendants then advised plaintiffs to bring an action in Supreme Court, New York County, against plaintiffs’ landlord (the Supreme Court Action). Plaintiffs now claim that defendants failed adequately to defend plaintiffs’ cases in Housing and Supreme Court. Plaintiffs assert that defendants owed:a fiduciary duty to act in plaintiffs’ best interests and not to expose plaintiffs to any unnecessary risk. Plaintiffs maintain that defendants materially breached the written terms of the retainer agreement. Plaintiffs argue that defendants failed to exercise reasonable care in advising and representing plaintiffs. Plaintiffs state that defendants breached their obligation under the oral escrow agreement created by defendants to hold $93,040.00 paid by plaintiffs in the L&T Matters. Last, plaintiffs assert that defendants failed to perform the work for which they were paid. Defendants now move pre-answer to dismiss under CPLR 3211 (a) (1 ), (5), and (7). Defendants argue that documentary evidence belies plaintiffs’ claims that defendants failed to return all the escrow money. Defendants also assert that cause of actions II, III, IV, and VII should be dismissed as duplicative of the legal-malpractice claim. Defendants further argue that plaintiffs are unable to satisfy the pleading requirements to sustain their legal malpractice and breach of fiduciary duty claims. According to defendants, plaintiffs fail to show that “but for” defendants’ alleged negligence, they would have had a better result in the underlying proceedings and action. Defendants further argue that plaintiffs’ conversion claim is time barred. ”

“Plaintiffs’ landlord brought two nonpayment proceedings in Housing Court, New York County, stemming from unpaid rent for two apartments that plaintiffs had occupied. Plaintiffs retained defendants to defend them in the L&T Matters. At about the same time the L&T Matters were pending, defendants, on plaintiffs’ behalf, commenced an action in Supreme Court, New York County, Index No. 102197/10, against plaintiffs’ landlord asserting, among other things, breach of the warranty of habitability, constructive eviction, and damage to plaintiffs’ property because of an alleged bedbug infestation in plaintiffs’ apartments causing plaintiffs to vacate the premises. Plaintiffs’ alleged damages exceed $100,000. In the current action, plaintiffs allege that defendants failed to assert affirmative defenses – constructive eviction and warranty of habitability – in the L&T Matters resulting in plaintiffs’ landlord’s obtaining two judgments against plaintiffs: (1) $46,520 representing unpaid rent and (2) $37,253.03 representing the landlords’ attorney fees. By way of background, plaintiffs raised in their L&T answer affirmative defenses relating to defects in the rent demand and the petition as well as the defense of lack of personal jurisdiction. After plaintiffs’ landlord moved for summary judgment and plaintiffs cross-moved for summary judgment, Housing Court, the Hon. Brenda Spears, granted the landlord’s motion for summary judgment and dismissed plaintiffs’ affirmative defenses. When plaintiffs’ landlord obtained summary judgment in the L&T Matters, plaintiffs moved in Supreme Court to stay the Housing Court Matters and to consolidate the Housing Court Matters with the Supreme Court Action. Hon. Louis York denied plaintiffs’ motion. Judge York found that different legal issues were before the court in the various cases and therefore that consolidation was inappropriate. According to plaintiffs, defendants’ behavior had negative consequences for plaintiffs in the L&T Matters and in the Supreme Court Action. Plaintiffs allege that defendants failed to inform plaintiffs about the outstanding judgments against plaintiffs in the L&T Matters. Plaintiffs allege that defendants failed to return their phone calls and respond to correspondence. Plaintiffs allege that defendants failed to prosecute the Supreme Court Action. Plaintiffs assert that defendants failed to respond to disclosure in the Supreme Court Action and to obey court orders for disclosure. Plaintiffs also allege that, without their authority and knowledge, defendants discontinued the Supreme Court Action. According to plaintiffs, but for defendants’ behavior, plaintiffs would not have two outstanding judgments against them. Plaintiffs assert that because of the passage of time from 2011 – when the Supreme Court Action was discontinued – until now, plaintiffs no longer have access to witnesses and documents to assert a successful claim against their former landlord. Plaintiffs also contend that defendants paid money to plaintiffs’ landlord from an escrow account without plaintiffs’ knowledge and authority. At this preliminary pre-answer motion to dismiss phase, plaintiffs have asserted a cause of action for legal malpractice. A legal-malpractice claim calls for three elements: negligence of the attorney, that the negligence was the proximate cause of the damages sustained, and proof of actual damages. (Bishop v Maurer, 33 AD3d 497, 498 (1st Dept 2006).) Plaintiffs assert that but for defendants’ conduct, plaintiffs would not have lost the ability to assert warranty of habitability claim in the Supreme Court Action. Defendants argue that this was a trial-strategy choice and that trial strategies are not actionable. (Dweck Law Firm, LLP v Mann, 283 AD2d 292, 292 [1st Dept 2001].) However, it is unclear whether defendants’ failure to assert the affirmative defenses of breach of warranty of habitability and constructive eviction in the L&T Matters was litigation strategy – and therefore unactionable – or whether defendants were negligent in asserting the defenses in the L&T Matters, such that but for defendants’ negligence plaintiffs would not have incurred damages – therefore actionable. 1 This court cannot tell at this phase whether defendants intended to litigate plaintiffs’ landlord unpaid-rent claim separately from plaintiffs’ breach of warranty-of-habitability and constructive-eviction claims and whether plaintiffs understood the ramifications of that litigation decision. Also, this court cannot tell at this phase whether defendants intended to litigate all issues – unpaid rent, constructive eviction, breach of warranty of habitability, and damage to personal property – in the Supreme Court Action. Plaintiffs also assert that defendants have caused damages, namely the two judgments plaintiffs’ landlord obtained in the L&T Matters. Plaintiffs have asserted facts sufficient to allege a cause of action for legal malpractice. “