Calendar Date: September 6, 2017
Lieberman Straus & Shrewsberry LLP, Hawthorne (Chelsea A.
Four-Rosenbaum of counsel), for appellants.
Luibrand Law Firm, PLLC, Latham (Kevin A. Luibrand of
counsel), for respondent.
Before: Peters, P.J., Garry, Rose, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Cahill, J.), entered
November 30, 2016 in Ulster County, which partially denied
defendants' motion to dismiss the amended complaint.
commenced this action against defendants alleging causes of
action for legal malpractice, breach of contract and fraud.
In particular, plaintiff alleged that it retained defendants
to provide legal services in connection with the collection
of debts and foreclosure matters in which plaintiff was the
mortgagee. Prior to serving an answer, defendants moved to
dismiss the complaint under CPLR 3016 and 3211 (a) (7). In
opposition to defendants' pre-answer motion, plaintiff
submitted an amended complaint, which added two paragraphs
but otherwise mirrored the original complaint . Supreme
Court granted defendants' pre-answer motion to the extent
of dismissing the breach of contract cause of action.
Defendants now appeal.
assessing a pre-answer motion to dismiss for failure to state
a cause of action, we accept the allegations in the complaint
as true and accord the plaintiff every favorable inference
(see Goshen v Mutual Life Ins. Co. of N.Y., 98
N.Y.2d 314, 326 ; Maki v Travelers Cos., Inc.,
145 A.D.3d 1228, 1230 , appeal dismissed 29
N.Y.3d 943 ; T. Lemme Mech., Inc. v Schalmont Cent.
School Dist., 52 A.D.3d 1006, 1008 ). Such
favorable treatment, however, "is not limitless"
(Tenney v Hodgson Russ, LLP, 97 A.D.3d 1089, 1090
). Notwithstanding the broad pleading standard, bare
legal conclusions with no factual specificity do not suffice
to withstand a motion to dismiss (see Godfrey v
Spano, 13 N.Y.3d 358, 373 ; New York State
Workers' Compensation Bd. v Program Risk Mgt., Inc.,
150 A.D.3d 1589, 1592 ; Rodriguez v Jacoby &
Meyers, LLP, 126 A.D.3d 1183, 1185 , lv
denied 25 N.Y.3d 912');">25 N.Y.3d 912');">25 N.Y.3d 912');">25 N.Y.3d 912 ). "Dismissal of the
complaint is warranted if the plaintiff fails to assert facts
in support of an element of the claim, or if the factual
allegations and inferences to be drawn from them do not allow
for an enforceable right of recovery" (Connaughton v
Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142 
malpractice claim requires that the plaintiff show that
"the defendant attorney failed to exercise the ordinary
reasonable skill and knowledge commonly possessed by a member
of the legal profession which results in actual damages to a
plaintiff, and that the plaintiff would have succeeded on the
merits of the underlying action 'but for' the
attorney's negligence" (AmBase Corp. v Davis
Polk & Wardwell, 8 N.Y.3d 428, 434  [citations
omitted]; see Hinsdale v Weiermiller, 126 A.D.3d
1103, 1104 ). The amended complaint alleged that, but
for defendants' failure to provide timely and competent
legal services, plaintiff would have succeeded in the
underlying debt collection and mortgage foreclosure actions.
The amended complaint further alleged that "had
[defendants] not failed to advise the cases in a timely and
competent manner..., [plaintiff] would not have incurred a
loss in time and value in the debt on the collection and
foreclosure cases assigned to defendant[s]." Other than
these vague and conclusory allegations, however, plaintiff
failed to plead any specific facts, which, if accepted as
true, would establish a legal malpractice claim. Absent from
the amended complaint is any mention of an instance of
deficient representation or any example of erroneous advice
by defendants. Merely alleging the elements of a legal
malpractice claim in a general fashion, without more, does
not satisfy the liberal pleading standard of CPLR 3211.
Furthermore, while a recitation of the elements of a cause of
action may meet that component of CPLR 3013 requiring that
the statements in a pleading provide notice of "the
material elements of a cause of action, " the statute
also requires that the pleading's statements be "
sufficiently particular to give the court and
parties notice of the transactions, occurrences or series of
transactions or occurrences, intended to be proved"
(CPLR 3013 [emphasis added]; cf. Matter of Garraway v
Fischer, 106 A.D.3d 1301, 1301 , lv
denied 21 N.Y.3d 864');">21 N.Y.3d 864 ; Eklund v Pinkey,
27 A.D.3d 878, 879 ).
statements in the amended complaint fail in this regard in
that they do not allege a single transaction where defendants
were retained to provide legal services or a single
occurrence of negligent legal representation forming the
basis of the legal malpractice claim, let alone the specific
underlying foreclosure action or actions in which defendants
allegedly committed legal malpractice. Other than stating
that defendants represented plaintiff in foreclosure actions,
the amended complaint does not allege, and, more critically,
it cannot reasonably be inferred from such pleading, what
defendants allegedly did or did not do in a negligent
fashion. The amended complaint is not just sparse on factual
details - rather, it is wholly devoid of them . Given the
absence of detailed facts, the legal malpractice cause of
action should have been dismissed (see Janker v Silver,
Forrester & Lesser, P.C., 135 A.D.3d 908, 910
; Rodriguez v Jacoby & Meyers, LLP, 126
A.D.3d at 1185-1186; Kreamer v Town of Oxford, 96
A.D.3d 1128, 1128 ; compare Soule v Lozada,
232 A.D.2d 825, 825 ).
the concerns raised by the concurrence/dissent, defendants
certainly could have requested a bill of particulars or moved
for a more definite statement under CPLR 3024 .
Notwithstanding the favorable standard enjoyed by plaintiff,
defendants nonetheless elected to challenge the legal
sufficiency of the legal malpractice allegations under CPLR
3211 (a) (7) . Having been apprised of
defendants' challenge and being presented with an
opportunity to particularize its allegations, plaintiff, in
response, submitted an amended complaint that merely added
two paragraphs consisting of bare legal conclusions.
Plaintiff had avenues to withstand the motion to dismiss but
"[chose] to stand on [its] pleading alone"
(Rovello v Orofino Realty Co., 40 N.Y.2d 633, 635
). Nor do we believe that our decision will lead to
unpredictability or confusion given that it reiterates the
proposition that bare legal conclusions in a pleading are not
entitled to consideration when assessing a motion to dismiss
under CPLR 3211 (a) (7) (see Myers v Schneiderman,
30 N.Y.3d 1, ___, 2017 NY Slip Op 06412, *3 ;
Connaughton v Chipotle Mexican Grill, Inc., 29
N.Y.3d at 141; Maas v Cornell Univ., 94 N.Y.2d 87,
91 ; Rodriguez v Jacoby & Meyers, LLP, 126
A.D.3d at 1185; Wiggins & Kopko, LLP v Masson,
116 A.D.3d 1130, 1131-1132 ). Indeed, such a motion
"is useful in disposing of actions in which the
plaintiff... has identified a cognizable cause of action but
failed to assert a material allegation necessary to support
the cause of action" (John R. Higgitt, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR
also failed to plead a fraud cause of action with the
requisite specificity and detail (see CPLR 3016
[b]). According to the allegations in the amended complaint,
defendants submitted invoices to plaintiff "contain[ing]
false representations as to the time spent by [d]efendants
and legal work done by [d]efendants for [plaintiff]" and
that "legal time and legal work alleged to have been
performed on behalf of [plaintiff] by [d]efendants was not
performed." The amended complaint, however, does not
detail what actual legal work was billed to plaintiff, but
not completed by defendants (see Ben-Zvi v Kronish Lieb
Weiner & Hellman, 278 A.D.2d 167, 167 ;
compare Vermont Mut. Ins. Co. v McCabe & Mack,
LLP, 105 A.D.3d 837, 839-840 ). As such, the fraud
cause of action should have been dismissed (see Weinberg
v Sultan, 142 A.D.3d 767, 768-769 ; Maxam v
Kucharczyk, 138 A.D.3d 1268, 1269 ). In light of
our determination, defendants' alternative contention
that the fraud cause of action is duplicative of the legal
malpractice cause of action has been rendered academic.
Peters, P.J., and Rose, J., concur.
J. (concurring in part and ...