Puccio v Hoffman, Wachtell & Rao, LLP 2026 NY Slip Op 05122 August 26, 2026

Appellate Division, Second Department is a legal malpractice case based upon a worker’s compensation claim which did not go well. The Appellate Division affirmed on the basis of “not inconsequential” claims

“In January 2024, the plaintiff commenced this action against the defendants, former counsel to the plaintiff in a workers’ compensation matter, inter alia, to recover damages for legal malpractice. Thereafter, the defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. The plaintiff opposed the defendants’ motion. In an order dated November 21, 2024, the Supreme Court denied the defendants’ motion. The defendants appeal.

“To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Berger v Lewis Johs Avallone Aviles, LLP, 232 AD3d 840, 841 [internal quotation marks omitted]; see Georgica Bldrs., Ltd. v 136 Bishops Lane, LLC, 175 AD3d 610, 611). On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88; Berger v Lewis Johs Avallone Aviles, LLP, 232 AD3d at 841).

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Ofman v Richland, 234 AD3d 865, 868 [internal quotation marks omitted]; see Bernstein v Jacobson, 238 AD3d 1102, 1103-1104). To establish causation in a legal malpractice action, “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 lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; see Kowalski v Gold Benes, LLP, 232 AD3d 869, 870).

Here, the Supreme Court properly determined that the defendants’ undisputed documentary evidence, including an order of the Appellate Division, Third Department, did not utterly refute the plaintiff’s factual allegations. The defendants did not conclusively establish that, under the circumstances, the defendants’ alleged failures were inconsequential to the disallowance of the plaintiff’s workers’ compensation benefits claim (see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830; Harris v Barbera, 96 AD3d 904, 905).

Moreover, the Supreme Court properly determined that, accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference, the plaintiff sufficiently alleged that “a more favorable outcome in his workers compensation claim would have been reached” but for the defendants’ alleged failure to properly represent him (see Bernstein v Jacobson, 238 AD3d at 1104; Berger v Lewis Johs Avallone Aviles, LLP, 232 AD3d at 841).”