In Komolov v Popik  2020 NY Slip Op 30909(U)  April 7, 2020 Supreme Court, New York County Docket Number: Index No. 155100/2017 Judge: Barbara Jaffe determines that both prior Supreme Court judges and Appellate Division panels made fundamental mistakes.  They each inconsistently ignored a written contract.  They each applied incorrect standards to determining motions to dismiss.  They failed to apply statutes correctly.  How can this be?  What does it mean to a claim of legal malpractice?

“It is undisputed that before the 2010 action was dismissed, defendants had been unable to obtain the condominium contract of sale from plaintiffs or their prior counsel, and it is
consistently observed in the pertinent judicial decisions that defendants’ failure to obtain the contract was not their fault. Plaintiffs do not demonstrate otherwise. Therefore, defendants establish that the dismissal in the 2010 action of the cause of action relating to the sale of the condominium did not result from their negligence.

Moreover, as the motion to dismiss was addressed to the sufficiency of the pleadings, the motion court’s decision to dismiss the condominium contract claim based not on a deficiency in pleading but on plaintiffs’ failure to produce the contract as evidence is inexplicable and unsupported by the law.

Nor is there merit to plaintiffs’ claim that defendants should have advanced quasicontractual causes of action in the 2010 action as a cause of action for breach of contract is
barred by the statute of frauds absent the contract, and may not be revived or contravened by the assertion of quasi-contractual claims based on the same contract.
Although defendants thereafter obtained the contract and submitted it in support of their claims in the 2011 action, the motion court apparently overlooked it in dismissing the contract claim in that action. That dismissal was upheld on appeal even though the appellate court had been aware that the contract had been produced in the 2010 action. Although the appellate court agreed that the motion to dismiss was addressed to the pleadings only and not to the merits of the claims, and for that reason reinstated plaintiffs’ causes of action related to the artwork and paintings, it inconsistently determined that the dismissal of the breach of contract claim related to the condominium had been on the merits.

Defendants’ subsequent motion to renew based on the newly discovered contract was denied, the justice deeming herself bound by the appellate decision, even though she believed it
was erroneous. Consequently, defendants demonstrate that the courts, not them, caused the dismissal of the causes of action relating to the condominium sale. Even had defendants moved for leave to renew earlier or appealed the 2010 dismissal, plaintiffs offer no evidence that the dismissal would have been vacated or reversed and/or that they would have then prevailed. Their assertion to the contrary is conclusory and fatally speculative. (See e.g., Brooks v Lewin, 21 AD3d 731 [1st Dept 2005], lv denied 6 NY3d 713 [2006] [speculation on future events insufficient to establish causation in malpractice action]; John P. Tilden, Ltd. v Profeta & Eisenstein, 236 AD3d 292 [1st Dept 1997] [contention that had attorneys filed timely motion for leave to appeal, court would have granted leave and reversed

decision, and retrial would have resulted in more favorable outcome, too speculative to support causation]). Indeed, the motion court in the 2011 action denied plaintiffs summary judgment and found that, had there been an existing breach of contract claim, there were issues of fact as to their entitlement to the balance of the condominium payment.
In any event, plaintiffs ultimately moved, years later, for leave to renew the 2010 decision dismissing their claim and, while the motion court observed that their delay in moving
was a factor in her decision to deny leave, she also ruled that she was bound by the appellate affirmance of the dismissal of the claim.

Moreover, defendants’ decision to file the 2011 action rather than move for leave to renew or appeal the 2010 dismissal constitutes a strategic determination, as the dismissal of most
of the causes of action was based on the insufficiency of allegations pleaded in the complaint, and plaintiffs offer no evidence, expert or otherwise, showing that the strategy is improper or unreasonable. And, as the motion court in the 2011 action suggested that were it not for the erroneous dismissal on appeal of plaintiffs’ breach of contract cause of action, she would have considered it on its merits in that action, plaintiffs’ conclusory allegation that the strategy was incorrect does not constitute actionable malpractice. (M&R Ginsburg, LLC v Segel, Goldman et al., 121AD3d1354 [3d Dept 2014] [defendants established that legal course they chose was among several reasonable ones, which did not constitute malpractice; plaintiffs’ speculation that different strategy would have led to better outcome fatally speculative]).

Defendants therefore demonstrate that their strategy in commencing the 2011 action in lieu of moving to renew or appealing the 2010 dismissal was not the proximate cause of
plaintiffs’ litigation loss of the condominium causes of action, and plaintiffs fail to raise a triable issue in opposition. In light of this result, the parties’ arguments regarding the estoppel effect of the accounting action and judgment need not be considered. ”