Keeping in mind the biblical aphorism that certain things come in threes, we report on a second lake front legal malpractice case.  This one is ZAVALIDROGA,  -v.-  COTE,  JOHN DOE, DORIS M. KELLEY, JAMES E. KELLEY, DAVID LAPLANTE, individually and officially as an Oneida County Sheriff’s deputy, GREGORY J. AMOROSO, individually and officially, TOWN OF ANNSVILLE, a municipal entity.

Well, perhaps it is not a lake but rather a pond.  "After the Zavalindrogas’ neighbors successfully sued in state court for rights to a pond and adjacent property, the Zavalindrogas brought the current federal action against their neighbors, their own and their neighbors’ attorneys in the state court action, two state court judges, a Sheriff’s deputy, and the Town of Annsville, alleging a "state-sponsored scheme" to convey the Zavalindrogas’ property to their neighbors."

"As to the other appellees, HN3this Court reviews de novo a district court decision dismissing a complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) or (b)(6). See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (Rule 12(b)(1)); [*5] Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (Rule 12(b)(6)). In each instance, this Court "constru[es] the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor." Chambers, 282 F.3d at 152; see also Triestman, 470 F.3d at 474.

HN4A district court may dismiss a complaint sua sponte for failure to state a claim, so long as the plaintiff is given notice and an opportunity to be heard. Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994). Further, HN5we may "affirm a decision on any grounds supported in the record, even if it is not one on which the trial court relied." Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 405 (2d Cir. 2006)."

"Finally, because the District Court properly dismissed all claims over which it had original jurisdiction, the District Court did not err by declining to exercise supplemental jurisdiction over the Zavalidrogas’ state law legal malpractice claim. See 28 U.S.C. § 1367(c)(3)."
 

Upstate New York, Cayuga Lake;  each of the plaintiffs wanted a lake front property on a Finger Lake.  First, the Andersons bought the property only to learn that then had less lake frontage, had an easement running through the property and that their out-buildings were encroaching on the neighbor’s property.  The litigated and then sued their attorney Albanese.  They settled with Albanese. 

Some time later they want to sell the property.  New potential buyers come along, and either intentionally or inadvertently hire Albanese to represent them in the purchase of the lake front property.  Albanese knows about the encroachments and the prior litigation. The purchasers then sued their attorney in Meador v. Albanese Law Office, 2010 U.S. Dist. LEXIS 100243

"The Meadors put down a $25,000 deposit toward the $720,000 purchase price. After the contract was signed, the Meadors retained defendants on June 6, 2005, to represent them in the transaction. The parties dispute whether prior to plaintiffs retaining Albanese, he informed them he had previously represented the Andersons in any capacity and that he had been sued by the Andersons. Defs’. Response to Pls’. SMF ¶ 20, Dkt. No. 40-3. It is undisputed defendants at that [*4] time did not inform the Meadors that the detached garage on the property encroached upon a right-of-way and violated setback requirements, nor did they advise plaintiffs the house was alleged to have structural defects. After engaging defendants, Dr. Meador requested she be kept informed of the progress and be given copies of any correspondence related to the transaction.

On June 23, 2005, the attorney for the Andersons delivered a letter to defendants which disclosed some but not of all the encumbrances and defects to the title. It is disputed whether a telephone call between Albanese and Dr. Meador took place on June 24, 2005. Defendants did not investigate the disclosed defects in the title at that time, opting to wait for voluntary disclosure by the Andersons’ attorney. Albanese did not disclose the encumbrances to plaintiffs, nor did he inform them he was expecting further information regarding the same from the Andersons’ attorney. On July 11, 2005, defendants received additional information regarding the defects. Albanese again failed to inform the Meadors of these disclosures. The parties dispute whether Albanese or the Office informed Dr. Meador the closing would occur on or [*5] about July 20, 2005.

Plaintiffs contend that in reliance upon this communication, they liquidated assets, transferred funds, alerted their lender and secured insurance in anticipation of the closing. Dr. Meador then traveled to Ithaca, New York on or about July 19, 2005, to attend the closing. Pls’. SMF ¶¶ 37-39, Dkt. No. 37. On July 20, 2005, she attended a pre-closing inspection of the property, during which time she discovered several title encumbrances from the Andersons’ realtor as well as the encroachments on the neighboring properties. Id. ¶ 41.

The Meadors contacted defendants and requested they terminate the contract and return plaintiffs’ $25,000 deposit. Albanese then communicated with the Andersons’ attorney and requested the contract be dissolved and the deposit returned. On July 28, 2005, defendants forwarded a list of objections regarding the property prepared by Dr. Meador to the Andersons’ attorney. The Meadors allege they made several attempts to contact Albanese between July 28, 2005, and August 15, 2005, to determine the status of the matter, but were told by staff of the Office that Albanese was "unavailable," and he did not return any of the calls. Pls’. SMF ¶ 46. [*6] On August 10, 2005, Dr. Meador faxed the Andersons’ attorney, demanding dissolution of the contract and return of escrow. On August 15, 2005, plaintiffs retained their current attorney, Michael D. Pinnisi, Sr., ("Pinnisi") as litigation counsel.

On or about August 17, 2005, the Andersons commenced a lawsuit against plaintiffs seeking to enforce the contract. On September 6, 2005, the Andersons’ attorney submitted an offer to cure to the Meadors, which they rejected on September 9, 2005. On November 20, 2008, the Appellate Division Third Department found that questions of fact as to material misrepresentations made by the Andersons existed so that it could not be determined as a matter of law if the contract was void as of its inception. The court let the Meadors’ cross-claim for fraud stand, and reversed the lower court’s order directing the $25,000 escrow funds payment to the Andersons. Anderson v. Meador, 56 A.D.3d 1030, 869 N.Y.S.2d 233 (N.Y. App. Div. 3d Dep’t 2008). Thereafter the Andersons and Meadors settled the action with the return of the $25,000 to the Meadors, the dismissal of all remaining claims, and the exchange of releases."

In MELNICK v. CARY PRESS,;No 06-CV-6686 (JFB) (ARL);UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK;2009 U.S. Dist. LEXIS 77609; August 28, 2009, Decided we find an excellent discussion of the rules of attorney fee liens under the Judiciary Law.
 

"Under New York law, an attorney who is discharged is statutorily entitled to a charging lien on any monetary recoveries obtained by the former client in the proceedings in which the attorney had rendered legal services. 1 See N.Y. Judiciary Law § 475. The Second Circuit has [*7] explained the rationale behind the charging lien:
New York’s statutory charging lien, see N.Y. Judiciary Law § 475 (McKinney 1983), is a device to protect counsel against "the knavery of his client," whereby through his effort, the attorney acquires an interest in the client’s cause of action. In re City of New York, 5 N.Y.2d 300, 307, 184 N.Y.S.2d 585, 157 N.E.2d 587 (1959). The lien is predicated on the idea that the attorney has by his skill and effort obtained the judgment, and hence "should have a lien thereon for his compensation, in analogy to the lien which a mechanic has upon any article which he manufactures." Williams v. Ingersoll, 89 N.Y. 508, 517 (1882).
Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 177 (2d Cir. 2001).

FOOTNOTES

1 A discharged attorney is also entitled to a retaining lien on the former client’s papers and property that are in the attorney’s possession, under New York common law. See Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir. 1991); see also McDermott v. Great Am. Alliance Ins. Co., No. 5:02 Civ. 0607 (NAM/DEP), 2006 U.S. Dist. LEXIS 52878, 2006 WL 2038452, at *2 (N.D.N.Y. July 18, 2006) ("In New York, an attorney who ceases to represent his or her client but has rendered [*8] services for which payment has not yet been received has two forms of recourse against non-payment, other than commencement of a plenary action — one derived from the common law [generally referred to as a retaining lien], and the other created by statute [referred to as a charging lien]."). Wagner Davis’ assertion of a retaining lien is discussed in connection with plaintiffs’ motion to compel infra.

Specifically, Section 475 of the New York Judiciary Law provides:
From the commencement of an action . . . the attorney who appears for a party has a lien upon his client’s cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, judgment or final order in his client’s favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination. The court upon the petition of the client or attorney may determine and enforce the lien.
N.Y. Judiciary Law § 475. The Second Circuit has made clear that Section 475 governs attorneys’ charging liens in federal courts sitting in New York, and such liens are "enforceable in federal courts in [*9] accordance with its interpretation by New York courts." Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 449 (2d Cir. 1998) (internal quotation marks and citations omitted). In order to establish a lien under Section 475, "there must be asserted a claim which can eventuate in there being proceeds payable to, or assets recoverable by, the client as a result of the efforts of the attorney." Rosewood Apartments Corp. v. Perpignano, No. 99 Civ. 4226 (NRB), 2005 U.S. Dist. LEXIS 8396, 2005 WL 1084396, at *3 (S.D.N.Y. May 3, 2005). Further, attorneys who terminate their representation are still entitled to enforce their charging liens, as long as the attorney does not withdraw without "good cause" and is not discharged for "good cause." See, e.g., McDermott v. Great Am. Alliance Ins. Co., No. 5:02 Civ. 0607 (NAM/DEP), 2006 U.S. Dist. LEXIS 52878, 2006 WL 2038452, at *2 (N.D.N.Y. July 18, 2006); Hill v. Baxter, No. 98 Civ. 4314 (SJF) (ASC), 2005 U.S. Dist. LEXIS 7157, 2005 WL 465429, at *2 (E.D.N.Y. Feb. 7, 2005); Petition of Harley & Browne, 957 F. Supp. 44, 48 (S.D.N.Y. 1997); Rankel v. Tracey, No. 84 Civ. 3412 (KMW), 1991 U.S. Dist. LEXIS 10673, 1991 WL 156324, at *7 (S.D.N.Y. Aug. 2, 1991); Klein v. Eubank, 87 N.Y.2d 459, 663 N.E.2d 599, 600, 640 N.Y.S.2d 443 (N.Y. 1996).
 

On calculating the actual amount the court wrote: "The Court does, however, find it necessary to subtract those hours that the firm spent on its motion to withdraw and on this pending motion. Such activities were not in furtherance of obtaining a favorable judgment on behalf of plaintiffs in this case and are thus not properly the subject of the charging lien. See, e.g., Cutner & Assocs., P.C. v. Kanbar, No. 97 Civ. 1902 (SAS), 1998 U.S. Dist. LEXIS 1045, 1998 WL 104612, at *3 (S.D.N.Y. Feb. 4, 1998)

"The Johnson factors are: "(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney’s customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitation imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases." 488 F.2d at 717-19."

Today’s New York Law Journal reports on a fee dispute.in an article by Susan Beck of The American Lawyer.  This, however is not a fee dispute one might see on a typical day in the fee dispute world.  Typically, those fee disputes are for sums less than $ 50,000.  Here, the client paid $ 5 million to Boies Schiller and the dispute is over an additional $ 5 million.  Besides those sums, the client paid Davis Polk an additional $ 7 million in fees before it ran out of money.

"In a lawsuit filed Oct. 1 in Manhattan Supreme Court, G.K. Las Vegas Limited Partnership is seeking to force Mr. Boies’s firm, Boies Schiller & Flexner, to arbitrate a fee dispute before the American Arbitration Association and to place more than $5.04 million in disputed fees in escrow.

G.K. claims that it has already paid the firm $5 million and disputes its obligation to pay another $5.04 million. It alleges that Boies Schiller breached its agreement that Mr. Boies would serve as lead counsel and "shirked its professional responsibilities" to the client.

Justice Bernard J. Fried (See Profile) has ordered Boies Schiller to respond to G.K.’s petition to compel arbitration by Oct. 15. A hearing in G.K. Las Vegas Limited Partnership v. Boies Schiller & Flexner, 651632/2010, is scheduled for Oct. 19.

G.K. claims that Mr. Boies immediately turned over the matter to less experienced counsel and more junior associates. As a result of the lack of senior partner attention, G.K. in 2007 brought in Davis Polk & Wardwell, which billed more than $7.6 million, the complaint states.

By 2008 the client was running out of money and could no longer pay Davis Polk. Mr. Boies agreed to resume his role as lead counsel under a new fee arrangement. According to the complaint, the amended fee agreement "substantially increased" the success fee. A letter signed by Mr. Boies in November 2008 and included as an exhibit states the success fee would be modified to 10 percent of the total recovery.

Boies Schiller also agreed not to charge for its hourly billings, except for work handled in its Las Vegas office, which would continue to bill at 80 percent of normal rates, the letter said. According to the complaint, the new fee agreement did not deduct the $250,000 engagement fee from the success fee.

Despite the new arrangement, the complaint alleges Mr. Boies continued to neglect the Nevada action, skipping one mediation session and arriving four hours late for another. G.K. claims Mr. Boies lied to the parties attending the mediation by claiming he was stuck on the tarmac at Los Angeles airport when he was actually giving a live interview with CNN. The client turned to Davis Polk on short notice to make a summary judgment motion because Mr. Boies was not prepared, the complaint asserts.

Mr. Boies nevertheless was expected to be lead trial counsel."
 

 Carl v. Cohen, Supreme Court, New York County, Justice Edmead 2009 NY Slip OP 30806(U), April 15, 2009 illustrates two distinct principals in the area of attorney-client privilege. The first is privilege and at issue communications.  The second principal, to be discussed on Friday, is relation-back and the statute of limitations.

Plaintiff in this case was an employee at a mutual fund operation, and was embroiled in a market timing case in which it was alleged that someone was utilizing the time-zone differences between the east coast and California to make money in the mutual funds market.  He hired law firm 1, then fired it, and went on to law firm 2 and 3.  This case discusses the question of whether target attorney in the legal malpractice case may obtain otherwise privileged materials from the successor attorneys.

"The issue at bar in this case is whether Cohen may depose plaintiff’s successor attorneys about the contents of and subject matter of these documents, as well as other communications "A waiver may also be found where the client places the subject matter of the privileged communication at issue, or where invasion of the privilege is required to determine the validity of the client’s claim or defense and application of the privilege would deprive the adversary of vital information [internal citations omitted] (Jakobleff v. Cerrato, Sweeney & Cohn, 97 AD2d 834, 835 [2d Dept 1983] [plaintiff did not place her privileged communications with her present attorney at issue, nor was discovery of such communications required to enable defendants to assert a defense merely by bringing an action against her former attorney for legal malpractice]; Credit Suisse First Boston v. Ultrecht-American Fin. Co., 27 AD3d 253, 254 [1st Dept 2007]; Raphael v. Clune White & Nelson, 146 AD2d 762, 763 [2d Dept 1989] [attorney-client privilege between client and attorneys who had taken over case from law firm was not waived by client’s initiating lawsuit. In addition, appellants failed to establish why the disclosure of privileged correspondence was vital to their defense in light of the broad range of materials already supplied by plaintiff]).

However, "that a privileged communication contains information relevant to issues the parties are litigating does not, without more, place the contents of the privileged communication at issue in the lawsuit; if that were the case, a privilege would have little effect [internal quotation marks omitted]" (Deutsche Bank Trust Co. Of Americas v. Tri-Links Inv. Trust, 43 AD3d 56, 64 [1st Dept 2007]; Veras Investment Partners, LLC v. Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370, 374 [1st Dept 2008] [Court found that it was error for the JHO to have found a waiver on the basis of relevance alone]). Thus, there is no "at issue" waiver where the party asserting privilege "does not need the privileged documents to sustain its cause of action" (Manufacturers & Traders Trust Co. v. Servotronics, Inc., 132 AD2d 392, 397 [4th Dept 1987]; (Deutsche Bank Trust Co. Of Americas v. Tri-Links Investment Trust, 43 AD3d at 64 [at issue waiver occurs when a claim or defense has been asserted by a party that he intends to prove by use of the privileged materials]).

Plaintiff asserts that the testimony of his successor attorneys is not discoverable in this case, as it cannot be said that plaintiff placed his privileged communications with his successor attorneys at issue, or that discovery of these communications is required to enable defendants to assert a defense (see Jakobleff v. Cerrato, Sweeney & Cohn, 97 AD2d at 834). Specifically, plaintiff asserts that, as he did not begin consulting with his successor attorneys until after his termination on November 14, 2003, and, as plaintiff’s successor attorneys did not simultaneously counsel him with Cohen in any post-termination matters, there is no possibility that his successor attorneys have any information that Cohen requires in order to defend plaintiff’s claims that Cohen had impermissible and undisclosed conflicts of interest, or that he failed to act in plaintiff’s best interests regarding Alliance’s defamatory U-5 form and subsequent misleading press releases. In addition, plaintiff notes that he concedes and will stipulate that his successor attorneys have not initiated a "whistleblower" cause of action on his behalf.
  

However, Cohen does not need further discovery of plaintiff’s successor attorneys to determine whether or not these actions were timely taken, as these facts are plain on their face. Thus, plaintiff is entitled to a protective order denying defendant Cohen’s third-party subpoena ad testificandum on his successor attorneys."

Plaintiff sues defendant attorneys for legal malpractice.  Among the claims of damages are financial losses in the underlying case, as well as emotional -pain and suffering-damages based upon outrageous conduct by the attorneys.  Are these non-economic damage claims permissible?

In New York, there may not be claims for non-economic damages arising from legal malpractice.  When one says A"arising" from legal malpractice, it is correct to say that the behavior of the attorneys cannot give rise to emotional damages.  Of course, if the legal malpractice took place in , say, a personal injury action, then the emotional damages which might have been collectable there are part of the overall legal malpractice damages, as they are now economic, and must be calculated as if in a hypothetical judgment that was never obtained.

In Taylor v Paskoff & Tamber, LLP ;2010 NY Slip Op 20405 ;Decided on October 4, 2010 ;Supreme Court, New York County ;Stallman, J.  we see his decision on an offshoot of this issue.  ""Emotional damages are not recoverable in a legal malpractice action." Kaiser v Van Houten, 12 AD3d 1012, 1014 (3rdDept 2004); Risman v Leader, 256 AD2d 1245, 1245 (4th Dept 1998); Dirito v Stanley, 203 AD2d 903 (4th Dept 1994). " A cause of action for legal malpractice does not afford recovery for any item of damages other than pecuniary loss so there can be no recovery for emotional or psychological injury." Wolkstein v Morgenstern, 275 AD2d 635, 637 (1st Dept 2000).

Plaintiffs argue that emotional distress and pain and suffering should be recoverable where the legal malpractice concerns adoption and custody cases. Plaintiffs concede that New York courts have never recognized such an exception, but assert that other states have permitted recovery of emotional damages in legal malpractice actions, citing Kohn v Schiappa (21 NJ Super 235 [1995]), McAvoy v Helikson (277 OR 781 [1977]). Plaintiffs also cite Douglas v Delp (987 SW2d 879 [1999]), which reviewed the cases that have addressed the issue and held that "when a plaintiff’s mental [*3]anguish is a consequence of economic losses caused by an attorney’s negligence, the plaintiff may not recover damages for that mental anguish." Douglas, 987 SW2d at 885.

The Court finds unpersuasive the out-of-state cases that plaintiffs cite. "This Court’s holding in Wolkstein v Morgenstern, (supra), limiting victims of legal malpractice to pecuniary damages, although issued in the context of a claim of legal malpractice in a civil action, amounts to a policy-based ruling not limited to that context." Wilson v City of New York, 294 AD2d 290, 292-293 (1st Dept 2002). Given that plaintiffs conceded that no reported New York case has permitted recovery of emotional damages in a legal malpractice action involving representation in adoption or custody matters, the Court sees no reason to depart from well-established appellate authority. Plaintiffs have not their burden of convincing the Court to depart from well-settled principles of New York law. Accordingly, the Court adheres to its prior rationale, decision, and order, which dismissed defendants’ tenth affirmative defense.

That is not to say that the measure of damages for pecuniary loss in a legal malpractice action could not, as a matter of law, include the amount of pain and suffering that a plaintiff would have recovered in a negligence action but for the malpractice of the attorney representing that plaintiff in the underlying negligence action. Such non-economic loss may be sought in certain kinds of legal malpractice actions unlike that alleged here. For example, should an attorney’s malpractice vitiate a plaintiff’s opportunity to pursue an underlying action in which non-economic loss might have been sought, that non-economic loss would be an element of the damages of economic loss attributable to the attorney’s wrongdoing sought to recovered in the legal malpractice action. Here, there was no underlying tort litigation that the attorney allegedly mishandled.

The decision in this case is straightforward, but gives practitioners little practical advice on how to word and present an expert’s affidavit.  In Giardina v Lippes, 2010 NY Slip Op 06834; Decided on October 1, 2010;  Appellate Division, Fourth Department we see two things.  The first is that the two summary judgment motion rule is not really a rule at all; it is really just guidance to the Court.  Two motions for summary judgment might be entertained after all.
 

The second issue we see is that of the quality of expert opinions in summary judgment.  Once, the rule was that courts scrutinize whether movant demonstrates prima facie entitlement to summary judgment, and if so, whether opponent demonstrates material questions of fact that continue to require resolution by the trier of fact.

The quality of an expert’s opinion was sacrosanct, since facts may not be debated in a motion for summary judgment.  Here, and in many other cases the kicker is when a court feels permitted to rule out the expert’s opinion as "conclusory."  In this case, as in many other appellate decisions, no time is taken to explain why the particular affidavit was "conclusory" rather than permissible.  What makes the difference?

Here, defendant’s expert presented a "good" affidavit, and plaintiff’s expert presented a "conclusory" affidavit in a lawn care products liability case.  How does one tell the difference?

Thomas v Dinkes & Schwitzer, P.C. .2010 NY Slip Op 51666(U) ,Decided on September 23, 2010
Supreme Court, Kings County ,Rivera, J. tells us that a completely inchoherent complaint, while "filled with verbs, nouns, adverbs" etc, will be dismissed. 
 

"On June 16, 2009, plaintiff, proceeding pro se, filed a summons and complaint under index number 14881/09 with the Kings County Clerk’s office. On February 22, 2010, plaintiff filed an amended complaint. On April 15, 2010, plaintiff filed a rewritten amended complaint, which is dated March 9, 2010. Plaintiff’s amended complaint consists of seven pages and eleven paragraphs. Above every paragraph are headings which name various causes of action. The headings above the first, second, sixth, and seventh paragraphs state that the sentences below them are for causes of action in legal malpractice, and the headings [*2]above the third, fourth, fifth, eighth, ninth, tenth, and eleventh paragraphs state that the sentences below them are for causes of action for breach of fiduciary duties, vicarious liability, fraud, intentional infliction of emotional distress, breach of contract, unjust enrichment, and conspiracy, respectively. The sentences in these paragraphs are not consecutively numbered. The complaint, although it contains numerous words, phrases, and sentences, is completely devoid of any coherent allegations of fact.
 

 Defendant strains to read meaning into plaintiff’s complaint, and addresses the requisite elements of causes of action for legal malpractice, breach of fiduciary duties, vicarious liability, fraud, intentional infliction of emotional distress, breach of contract, unjust enrichment, and conspiracy. However, since plaintiff has not satisfied the first requirement of pleading facts which give notice of the transactions or occurrences intended to be proved, there are no facts against which to apply the second requirement of whether the alleged facts state a cognizable cause of action (see CPLR 3013).

For example, "[a] cause of action to recover damages for legal malpractice requires proof of three elements: (1) that the defendant failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community, (2) that such negligence was the proximate cause of the actual damages sustained by the plaintiff, and (3) that, but for the defendant’s negligence, the plaintiff would have been successful in the underlying action" (Simmons, 32 AD3d at 465; see also Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407, 409 [2007]; Edwards v Haas, Greenstein, Samson, Cohen & Gerstein, P.C.,17 AD3d 517, 519 [2005]; J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 14 AD3d 482, 483 [2005]). Since plaintiff has failed to satisfy the first hurdle of pleading factual allegations, he cannot meet the requirements of satisfying the above stated necessary showing to allege a sustainable cause of action for legal malpractice.

While, as discussed above, the court must liberally construe factual allegations and will not dismiss a complaint simply because of poor draftsmanship, here, the court cannot strain to give meaning to a pleading which completely fails to state any coherent or comprehensible factual allegations (see CPLR 3013). Thus, inasmuch as plaintiff’s complaint does not state any cognizable claim in law or in equity, it must be dismissed pursuant to CPLR 3211 (a) (7) (see Heffez, 56 AD3d at 526; Simmons, 32 AD3d at 465).