Summary
dismissing claims for breach of contract as "merely redundant pleadings" of the malpractice claims because they were "based upon defendants' purported failure to exercise due care and to abide by professional standards"
Summary of this case from Moreno-Godoy v. Gallet Dreyer & Berkey, LLPOpinion
5234
January 31, 2002.
Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered on or about July 11, 2001, which denied plaintiff's motion for summary judgment and defendants' cross motion for partial summary judgment and, after a search of the record, dismissed plaintiff's third and fourth causes of action, unanimously modified, on the law, and upon a search of the record, defendants' cross motion granted, the complaint dismissed in its entirety and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.
ROBERT FREDERIC MARTIN, for plaintiff-appellant-respondent.
JOHN F. CAMBRIA, for defendants-respondents-appellants.
Before: Nardelli, J.P., Sullivan, Ellerin, Rubin, Friedman, JJ.
We agree with the motion court that plaintiff's third and fourth causes of action must be dismissed as it is clear that its breach of contract claims, based upon defendants' purported failure to exercise due care and to abide by general professional standards, are merely redundant pleadings of the malpractice causes of action (Sadkin v. Raskin Rappaport, P.C., 271 A.D.2d 272; Levine v. Lacher Lovell-Taylor, 256 A.D.2d 147, 151).
With regard to plaintiff's remaining two causes of action, which sound in legal malpractice, it is settled that an action for legal malpractice requires proof of three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and proof of actual damages (Prudential Ins. Co. of Am. v. Dewey, Ballantine, Bushby, Palmer Wood, 170 A.D.2d 108, 114, affd 80 N.Y.2d 377; Gray v. Wallman Kramer, 184 A.D.2d 409, 413). In order to demonstrate proximate cause, plaintiff must establish that "but for" the attorney's negligence, plaintiff would have prevailed in the matter at issue or would not have sustained any damages (Senise v. Mackasek, 227 A.D.2d 184, 185; Levine v. Lacher Lovell-Taylor, supra, at 149).
Plaintiff's first cause of action asserts that defendants breached their duty of care and professional competence owed to plaintiff by failing to properly advise plaintiff in connection with the lease. We conclude, however, after a search of the record (see, Dunham v. Hilco Constr. Co., Inc., 89 N.Y.2d 425; A.C. Transp., Inc. v. Board of Educ. of City of N.Y., 253 A.D.2d 330, lv denied 93 N.Y.2d 808), that plaintiff has failed to establish that it incurred any damages as the result of defendants' purported negligence. Indeed, plaintiff's increased architectural and construction costs had nothing to do with the underlying zoning problem but, rather, were the result of the unsuitability of the premises for its intended use. Tellingly, after the zoning problem was discovered, plaintiff executed an amendment to the lease for additional space at the premises.
Plaintiff's second cause of action asserts that "but for" defendants' improper handling of plaintiff's defense in a lawsuit brought by the landlord, plaintiff would not have incurred unnecessary legal fees. Plaintiff's allegations, however, with regard to counsel's purported negligence, as well as to the damages incurred, were speculative at best, and unsupported by specific factual allegations, thereby warranting dismissal of this claim (see, The Dweck Law Firm, LLP v. Mann, 283 A.D.2d 292).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.