In Richmond Hospitality, LLC v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrera, Wolf & Carone, LLP 2022 NY Slip Op 51310(U) Decided on December 20, 2022
Supreme Court, Richmond County Castorina Jr., J. we see a situation unique to legal malpractice cases. Early on the Court will dismiss, determining that the complaint cannot state a cause of action. This almost never happens in medical malpractice or personal injury cases.
“This is an action for legal malpractice, arising out of an underlying mortgage foreclosure [*2]proceeding, entitled Shaughnessy Capital, LLC v Richmond Hospitality, LLC, et al., bearing Richmond County Supreme Court Index No.: 152641/2019. In September 2019 Richmond Hospitality, LLC [hereinafter “Richmond Hospitality”] retained Defendants [hereinafter “Abrams Fensterman”] to represent them in the underlying foreclosure action brought by Shaughnessy Capital, LLC.
Abrams Fensterman filed an Answer on Defendant’s behalf in the underlying foreclosure action. Shaughnessy Capital then filed a motion for summary judgment. Abrams Fensterman failed to oppose the motion and to appear in Court on the return date causing the motion to go before the Court unopposed, and in May 2021, the motion was granted and an approximately $7.8 million judgment was entered against Defendants. In July 2021, Abrams Fensterman moved to vacate the May 2021 order granting Shaughnessy Capital’s motion for summary judgment. In October 2021, the motion to vacate was denied by Justice Wayne Ozzi.
Defendants allege that Abrams Fensterman failed to exercise care and skill by failing to oppose the summary judgment motion, and that the failure to do so, was the proximate cause for the judgment against them. Defendants further allege that had Abrams Fensterman opposed the motion, they would have prevailed in the underlying foreclosure action by advancing the defense that money was not accounted for properly by the lender, and that money was released without Defenndant’s prior knowledge or approval. Abrams Fensterman alleges that the First Amended Verified Complaint in the within action, fails to state a cause of action, and/or is barred by documentary evidence.”
“Here, the First Amended Verified Complaint alleges that Abrams Fensterman failed to oppose the motion for summary judgment in the underlying foreclosure action, and that, but for that failure, Defendants would have successfully defended and prevailed in the action. In doing so, however, the First Amended Verified Complaint makes only a single vague allegation to support the claim that Defendants would have prevailed in the underlying foreclosure action, to wit:
“That but for the professional negligence of the Defendant in not appearing or opposing the motion for summary judgment that was brought against the within Plaintiffs in the underlying case of Shaughnessy Capital LLC v Richmond Hospitality, LLC the within Plaintiff “would have been successful in defeating said motion for summary judgment, as well as, the underlying action by advancing the defense that they had to the position taken by the lender, Shaughnessy Capital, LLC, to wit, that the money not accounted for properly and money was released without the within Plaintiff’s prior knowledge or approval.”[Emphasis added].
There are no other allegations in the First Amended Complaint bearing on the claim that Richmond Hospitality would have successfully defended against, and prevailed in, the underlying foreclosure action. This lone allegation is insufficient to plead the “but for” element of a cause of action for legal malpractice because it is too conclusory and impermissibly speculative. The First Amended Complaint  does not allege that Richmond Hospitality did not default under the Loan Documents,  does not allege that liens were never filed against the subject property,  does not allege that Richmond Hospitality had no obligation to remove liens filed against the subject property under the Loan Documents,  does not allege that Richmond Hospitality otherwise fulfilled its obligations under the Loan Documents,  does not allege that Richmond Hospitality did not receive notice of a default from Shaughnessy Capital, LLC, and  does not allege that Richmond Hospitality cured the defaults.
The First Amended Verified Complaint makes only the foregoing disjointed allegation that can be fairly characterized as vague, conclusory, and impermissibly speculative. There is no way to discern from this allegation how or on what factual basis, Richmond Hospitality would have prevailed in the underlying foreclosure action. Even given the First Amended Verified Complaint’s allegations the benefit of every favorable inference, there is still no way to know how Defendants claim they would have successfully defended the underlying foreclosure action, and the allegations of their default under the Loan Documents. The allegations that Richmond Hospitality had a meritorious defense to the underlying foreclosure action because “Shaughnessy Capital did not ‘account’ or released money without Richmond Hospitality’s “prior knowledge and approval” are too conclusory and speculative to state a cause of action for legal malpractice.”