Leder v. Spiegel

[267] Order, Surrogate’s Court, New York County (Renee R. Roth, S.), entered on or about May 28, 2002, which granted petitioner attorney’s application for legal fees and disbursements against appellant and granted petitioner’s motion to dismiss appellant’s counterclaims against petitioner, affirmed, without costs. Petitioner’s representation of appellant as an objecting distributee and interested person in a probate proceeding (258 AD2d 379 [1999], lv denied 93 NY2d 810 [1999], cert denied 528 US 1066 [1999]) gave the Surrogate jurisdiction to hear petitioner’s application for legal fees (SCPA 2110 [1]), to award attorneys’ fees against appellant personally (see Matter of Levine, 262 AD2d 80 [1999]), and to determine appellant’s counterclaims for legal malpractice and breach of contract arising out of petitioner’s representation of appellant in the probate proceeding (NY Const, art VI, § 12 [d]; see Matter ofTarka, 293 AD2d 396 [2002], lv denied 99 NY2d 530 [2002]; see generally Matter of Piccione, 57 NY2d 278, 287-289 [1982]). The record does not reveal bias on the part of the Surrogate; thus recusal was properly denied (see People v Moreno, 70 NY2d 403, 405-406 [1987]; Tarka, supra). With regard to that branch of petitioner’s motion which sought dismissal of appellant’s legal malpractice counterclaims, it is well settled that in considering a motion to dismiss brought pursuant to CPLR 3211 (a) (7), the court must presume the facts pleaded to be true and must accord them every favorable inference (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]; Delran v Prada USA Corp., 23 AD3d 308 [2005]). It is, however, also axiomatic that factual allegations which fail to state a viable cause of action, that consist of bare legal conclusions, or that are inherently incredible or unequivocally contradicted by documentary evidence, are not entitled to such consideration (Skillgames, LLC v Brody, 1 AD3d 247, 250 [2003]; Caniglia v Chicago Tribune-N.Y. News Syndicate, 204 AD2d 233, 233-234 [1994]). In order to state a cause of action for legal malpractice, the complaint must set forth three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages (Reibman v Senie, 302 AD2d 290 [2003]; Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193, 198 [2003]). In order to establish proximate [268] cause, plaintiff must demonstrate that “but for” the attorney’s negligence, plaintiff would either have prevailed in the matter at issue, or would not have sustained any “ascertainable damages” (Brooks v Lewin, 21 AD3d 731, 734 [2005]; Reibman v Senie, 302 AD2d at 290-291). The failure to demonstrate proximate cause mandates the dismissal of a legal malpractice action regardless of whether the attorney was negligent (Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d at 198; Pellegrino v File, 291 AD2d 60, 63 [2002], lv denied 98 NY2d 606 [2002]). In the matter at bar, appellant Marshall Spiegel’s malpractice claim rests on the unsupported, conclusory assertion that he would have accepted the settlement offer but for petitioner’s erroneous advice concerning his prospect of success at trial. There is no support for his claim in the voluminous record this matter has generated, nor is there anything in the record, such as an affidavit from his co-objectant brother Michael, to refute petitioner’s claim that she actively encouraged the brothers to accept the settlement, but that appellant alone had refused over Michael’s protestations. Moreover, as the Surrogate notes in her decision, the settlement negotiations occurred “on many occasions” and were ongoing up to the morning of trial. Finally, in an affirmation signed on October 11, 1999, appellant stated that the settlement offer he now claims petitioner counseled him to refuse, remained open, but that he and his brother were refusing to accept it (again, without any substantiation from the brother) without verification of the value of the estate. There is, however, no indication that such an accounting has ever been provided, rendering appellant’s claim that he refused the settlement strictly on petitioner’s advice to be suspect, at best. Accordingly, since appellant’s claim is based upon nothing but bare allegations of fact and conclusory legal arguments (see Dweck Law Firm v Mann, 283 AD2d 292, 293 [2001]; Between The Bread Realty Corp. v Salans Hertzfeld Heilbronn Christy & Viener, 290 AD2d 380, 381 [2002], lv denied 98 NY2d 603 [2002]), it was properly dismissed by the Surrogate’s Court. Concur—Tom, J.P., Mazzarelli and Nardelli, JJ.