In York v Frank  2022 NY Slip Op 05738  Decided on October 12, 2022  Appellate Division, Second Department, after discarding the statute of limitations as a reason to dismiss, the Second Department took up an alternative reason to dismiss.  This was done even though the parties did not address the issue.

“Although the Supreme Court did not address the defendants’ contention that the amended complaint should be dismissed pursuant to CPLR 3211(a)(7) for failure to state a cause of action, we reach that issue as an alternative ground for affirmance (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 544-546; Kauffman v Turner Constr. Co., 195 AD3d 1003, 1005).

“On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint, the pleading is to be afforded a liberal construction” (Farber v Breslin, 47 AD3d 873, 876; see Bernhardt v Schneider, 190 AD3d 919, 920). To state a valid cause of action alleging legal malpractice, the plaintiff must plead sufficient facts to “show that an attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” (McCoy v Feinman, 99 NY2d 295, 301 [internal quotation marks omitted]; see Ackerman v Kesselman, 100 AD3d 577, 579). The “plaintiff must [also] show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney’s negligence” (Mackey Reed Elec., Inc. v Morrone & Assoc., P.C., 125 AD3d 822, 823). In addition, the plaintiff must plead actual and ascertainable damages that resulted from the alleged legal malpractice or that “might be reasonably inferred” (id. at 823; see McCoy v Feinman, 99 NY2d at 301-302; Hall v Hobbick, 192 AD3d 776, 778).

Here, the plaintiff failed to plead sufficient facts to state a cause of action alleging legal malpractice in connection with the divorce action. The plaintiff’s allegations as to how the Supreme Court might have ruled had her attorney moved ex parte for an order of preclusion were speculative (see Denisco v Uysal, 195 AD3d 989, 991). Moreover, the plaintiff’s allegations that the failure of the defendants to make such an application constituted negligence were conclusory (see [*3]Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1506; Hashmi v Messiha, 65 AD3d 1193, 1194-1196). Further, the plaintiff’s allegation that she sustained actual and ascertainable damages as a result of the defendants’ negligence also was conclusory and speculative (see Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506; Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 847-848). In sum, “the conclusory allegations of the [amended] complaint failed to adequately plead specific facts to establish that, but for the defendants’ alleged negligent conduct, the outcome in the underlying action would have been any more favorable to the plaintiff[ ], or that the plaintiff[ ] would not have incurred any damages” (Kahlon v DeSantis, 182 AD3d 588, 589; see Denisco v Uysal, 195 AD3d at 991; Janker v Silver, Forrester & Lesser, P.C., 135 AD3d 908, 910; Hashmi v Messiha, 65 AD3d at 1195; cf. McCoy v Feinman, 99 NY2d at 305; Stewart Tit. Ins. Co. v Wingate, Kearney & Cullen, 134 AD3d 924, 924-925).”