ALBANY: The Third Department heard oral argument and rendered a decision in Mid-Hudson Val. Fed. Credit Union v Quartararo & Lois, PLLC 2017 NY Slip Op 07916 [155 AD3d 1218]
November 9, 2017 Appellate Division, Third Department, holding that in this legal malpractice case there were simply not enough allegations for the court to reach any deterioration at all. Because there were two dissenters, this case might well show up in the Court of Appeals.
“A legal malpractice claim requires that the plaintiff show that “the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action ‘but for’ the attorney’s negligence” (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434  [citations omitted]; see Hinsdale v Weiermiller, 126 AD3d 1103, 1104 ). The amended complaint alleged that, but for defendants’ failure to provide timely and competent legal services, plaintiff would have succeeded in the underlying debt collection and mortgage foreclosure actions. The amended complaint further alleged that “had [defendants] not failed to advise the cases in a timely and competent manner . . . , [plaintiff] would not have incurred a loss in time and value in the debt on the collection and foreclosure cases assigned to defendant[s].” Other than these vague and conclusory allegations, however, plaintiff failed to plead any specific facts, which, if accepted as true, would establish a legal malpractice claim. Absent from the amended complaint is any mention of an instance of deficient representation or any example of erroneous advice by defendants. Merely alleging the elements of a legal malpractice claim in a general fashion, without more, does not satisfy the liberal pleading standard of CPLR 3211. Furthermore, while a recitation of the elements of a cause of action may meet that component of CPLR 3013 requiring that the statements in a pleading provide notice of “the material elements of [a] cause of action,” the statute also requires that the pleading’s statements be “sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved” (CPLR 3013 [emphasis added]; cf. Matter of Garraway v Fischer, 106 AD3d 1301, 1301 , lv denied 21 NY3d 864 ; Eklund v Pinkey, 27 AD3d 878, 879 ).
The statements in the amended complaint fail in this regard in that they do not allege a single transaction where defendants were retained to provide legal services or a single occurrence of negligent legal representation forming the basis of the legal malpractice claim, let alone the specific underlying foreclosure action or actions in which defendants allegedly committed legal malpractice. Other than stating that defendants represented plaintiff in foreclosure actions, the amended complaint does not allege, and, more critically, it cannot reasonably be inferred from such pleading, what defendants allegedly did or did not do in a negligent fashion. The amended complaint is not just sparse on factual details—rather, it is wholly devoid of them.[FN2] Given the [*3]absence of detailed facts, the legal malpractice cause of action should have been dismissed (see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d 908, 910 ; Rodriguez v Jacoby & Meyers, LLP, 126 AD3d at 1185-1186; Kreamer v Town of Oxford, 96 AD3d 1128, 1128 ; compare Soule v Lozada, 232 AD2d 825, 825 ).
Addressing the concerns raised by the concurrence/dissent, defendants certainly could have requested a bill of particulars or moved for a more definite statement under CPLR 3024.[FN3]Notwithstanding the favorable standard enjoyed by plaintiff, defendants nonetheless elected to challenge the legal sufficiency of the legal malpractice allegations under CPLR 3211 (a) (7).[FN4] Having been apprised of defendants’ challenge and being presented with an opportunity to particularize its allegations, plaintiff, in response, submitted an amended complaint that merely added two paragraphs consisting of bare legal conclusions. Plaintiff had avenues to withstand the motion to dismiss but “[chose] to stand on [its] pleading alone” (Rovello v Orofino Realty Co., 40 NY2d 633, 635 ). Nor do we believe that our decision will lead to unpredictability or confusion given that it reiterates the proposition that bare legal conclusions in a pleading are not entitled to consideration when assessing a motion to dismiss under CPLR 3211 (a) (7) (see Myers v Schneiderman, 30 NY3d 1, 11 ; Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d at 141; Maas v Cornell Univ., 94 NY2d 87, 91 ; Rodriguez v Jacoby & Meyers, LLP, 126 AD3d at 1185; Wiggins & Kopko, LLP v Masson, 116 AD3d 1130, 1131-1132 ). Indeed, such a motion “is useful in disposing of actions in which the plaintiff . . . has identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action” (John R. Higgitt, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:22).”