In a relatively rare reversal of Supreme Court’s CPLR 3101 dismissal of a legal malpractice case, the Appellate Division, Second Department reversed and remanded Kowalski v Gold Benes, LLP 2024 NY Slip Op 05967 Decided on November 27, 2024.

“The plaintiffs commenced this action to recover damages for legal malpractice against the defendants. The plaintiffs alleged, among other things, that they retained the defendants to represent them in an action to recover damages for personal injuries the plaintiff Colin D. Kowalski allegedly sustained in a motor vehicle accident (hereinafter the underlying action) and that due to the defendants’ failures to pursue a theory based on a violation of Vehicle and Traffic Law § 509(3), the plaintiffs were not able to obtain a verdict in their favor in the underlying action. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order entered May 25, 2022, the Supreme Court granted the defendants’ motion. The plaintiffs appeal.’

“To state a cause of action to recover damages for legal malpractice, “a plaintiff must allege that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately [*2]caused plaintiff to sustain actual and ascertainable damages” (Lam v Weiss, 219 AD3d 713, 716 [alterations and internal quotation marks omitted]; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 716). “To establish causation, a plaintiff must 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; see Lam v Weiss, 219 AD3d at 716). “A plaintiff is not obligated to show, on a motion to dismiss, that it actually sustained damages” (Mackey Reed Elec., Inc. v Morrone & Assoc., P.C., 125 AD3d at 823). “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” (Churong Liu v Gabbay, 219 AD3d 459, 460 [internal quotation marks omitted]; see Maursky v Latham, 219 AD3d 473, 474-475).

Here, the Supreme Court erred in granting dismissal of the complaint pursuant to CPLR 3211(a)(7). Accepting the allegations in the complaint as true and according the plaintiffs the benefit of every possible favorable inference, the complaint states a cause of action for legal malpractice (see Ofman v Tenenbaum Berger & Shivers, LLP, 217 AD3d 960, 962). In the underlying action, the jury found that the non-settling defendant was not negligent. There is no dispute that the defendants herein did not present any evidence to support a negligence per se theory.

Accordingly, the Supreme Court should have denied the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint.”