November 22, 2011
Darin Gioeli, respondent,
George C. Vlachos, et al., appellants. Index No. 1426/08
Michael E. McCarthy, Central Islip, N.Y., for appellants.
Irving Cohen, New York, N.Y., for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, ARIEL E. BELEN, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for legal malpractice, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Mayer, J.), dated October 26, 2010, as denied that branch of their motion pursuant to CPLR 3211(a)(7) which was to dismiss the cause of action alleging legal malpractice.
ORDERED that the order is affirmed insofar as appealed from, with costs.
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 breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (Leder v Spiegel, 9 N.Y.3d 836');">9 N.Y.3d 836, 837 [internal quotation marks omitted], cert denied sub nom. Spiegel v Rowland, 552 U.S. 1257; see Dempster v Liotti, 86 A.D.3d 169, 176). "To establish the element of 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" (Snolis v Clare, 81 A.D.3d 923, 925). Further, in considering a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading is to be afforded a liberal construction, the facts alleged in the complaint are accepted as true, and the complaint is construed in a light most favorable to the plaintiff (see Leon v Martinez, 84 N.Y.2d 83, 87; Yenrab, Inc. v 794 Linden Realty, LLC, 68 A.D.3d 755, 757).
Here, the plaintiff alleges that the defendants committed legal malpractice in their representation of the plaintiff in an underlying claim against the State of New York for unjust conviction and imprisonment pursuant to Court of Claims Act § 8-b. As pertinent to this appeal, "to present [a] claim for unjust conviction and imprisonment, claimant must establish by documentary evidence " his conviction of one or more felonies, that he was sentenced to a term of imprisonment, that he served "any part" of the sentence imposed, that the judgment of conviction was reversed and the indictment dismissed upon certain enumerated grounds, and that the claim was timely filed (Court of Claims Act § 8-b [emphasis added]). It is undisputed that the defendants failed to submit such "documentary evidence" when they filed the underlying claim in the Court of Claims and that the underlying claim was dismissed based on that pleading defect (Reed v State of New York, 78 N.Y.2d 1, 7; Gioeli v State of New York, 39 A.D.3d 815; Piccarreto v State of New York, 144 A.D.2d 920, 921; Heiss v State of New York, 143 A.D.2d 67, 69; Ivey v State of New York, 138 A.D.2d 963; Stewart v State of New York, 133 A.D.2d 112, 113; Lanza v State of New York, 130 A.D.2d 872, 873). Accordingly, contrary to the defendants' contention, the complaint adequately pleaded the element regarding the defendants' failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession (see Leder v Spiegel, 9 N.Y.3d at 837).
The defendants' remaining contentions are either without merit or improperly raised for the first time in their reply brief.
DILLON, J.P., BALKIN, LEVENTHAL and BELEN, JJ., concur.