                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 26, 2015                   518430
________________________________

MARITA E. HYMAN,
                    Appellant,
     v
                                            MEMORANDUM AND ORDER
SUSAN BURGESS,
                    Respondent.
________________________________


Calendar Date:   January 7, 2015

Before:   Lahtinen, J.P., Garry, Rose and Devine, JJ.

                             __________


     Marita E. Hyman, West Edmeston, appellant pro se.

     Susan Burgess, Hamilton, Ohio, respondent pro se.

                             __________


Devine, J.

      Appeals (1) from an order of the Supreme Court (Cerio Jr.,
J.), entered May 2, 2013 in Madison County, which, among other
things, denied plaintiff's motion to dismiss defendant's
counterclaims, and (2) from an order of said court, entered
September 30, 2013 in Madison County, which, among other things,
granted defendant's cross motion to dismiss plaintiff's amended
complaint.

      Plaintiff retained defendant, a licensed attorney, to
represent her in various legal matters, including perfecting
appeals in a CPLR article 78 proceeding and an action pursuant to
Title IX (see 20 USC § 1681 et seq.) that had been commenced
against Cornell University by plaintiff's previous attorneys.
Having grown discontent with defendant's services, plaintiff
terminated defendant and subsequently commenced this action for
negligent infliction of emotional distress and legal
                              -2-                518430

malpractice.1 Defendant served an answer containing
counterclaims of breach of contract, quantum meruit and unjust
enrichment. Thereafter, plaintiff moved to dismiss the
counterclaims, which motion Supreme Court denied. Four months
later, the court granted defendant's cross motion to dismiss
plaintiff's amended complaint. Plaintiff appeals from both
orders.

      Plaintiff first asserts that Supreme Court erred in denying
her motion to dismiss defendant's counterclaims. A motion to
dismiss for failure to state a cause of action can be granted
only where the facts alleged do not "fit within any cognizable
legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see
Lewis v DiMaggio, 115 AD3d 1042, 1043 [2014]; Brooks v Key Trust
Co. N. A., 26 AD3d 628, 629-630 [2006], lv dismissed 6 NY3d 891
[2006]).2 As to defendant's breach of contract counterclaim, she
alleged that the parties executed enforceable retainer
agreements, defendant performed professional services under those
agreements and plaintiff failed to perform, thereby causing
defendant to sustain damages. Affording defendant's
counterclaims a liberal construction, accepting the allegations
as true and giving defendant "the benefit of every possible
inference," we determine that she has stated a viable cause of
action against plaintiff for breach of contract (EBC I, Inc. v
Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Goshen v Mutual
Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Torok v Moore's


    1
        This Court decided an appeal in a similar action that
plaintiff had commenced against her former attorneys in the CPLR
article 78 proceeding and federal Title IX action (Hyman v
Schwartz, 114 AD3d 1110 [2014], lv dismissed 24 NY3d 930 [2014]).
    2
        To the extent that plaintiff demanded the dismissal of
defendant's counterclaims pursuant to CPLR 3211 (a) (1), we find
that, because the record does not contain documentary evidence
that "utterly refutes" defendant's allegations, Supreme Court
properly denied plaintiff's motion on this particular ground
(Mason v First Cent. Natl. Life Ins. Co. of N.Y., 86 AD3d 854,
855 [2011]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d
314, 326 [2002]).
                              -3-                518430

Flatwork & Founds., LLC, 106 AD3d 1421, 1422 [2013]). However,
with regard to defendant's counterclaim that plaintiff was
unjustly enriched by her refusal to remit necessary payments for
the legal services and related expenses that defendant provided,
the assertions raised in defendant's breach of contract
counterclaim echo this equitable claim and, therefore, it must be
dismissed (see Corsello v Verizon N.Y., Inc., 18 NY3d 777, 790-
791 [2012]; Samiento v World Yacht Inc., 10 NY3d 70, 81 [2008]).

      Defendant's counterclaim of quantum meruit "requires a
showing of 'a [party]'s performance of services in good faith,
acceptance of those services by [the other party], an expectation
of compensation and proof of the reasonable value of the services
provided'" (Rafferty Sand & Gravel, LLC v Kalvaitis, 116 AD3d
1290, 1291-1292 [2014], quoting DerOhannesian v City of Albany,
110 AD3d 1288, 1292 [2013], lv denied 22 NY3d 862 [2014]).
Accepting defendant's allegations as true, namely that she
provided plaintiff with legal services, in good faith and with
the understanding that payment would be remitted, and that such
services were accepted by plaintiff without the provision of due
compensation, we find that defendant stated a cognizable
equitable claim for quantum meruit (see Rafferty Sand & Gravel,
LLC v Kalvaitis, 116 AD3d at 1291-1292; Venture Silicones, Inc.
v General Elec. Co., 14 AD3d 924, 925 [2005]).

      Turning our attention to defendant's cross motion seeking
dismissal of the amended complaint, we conclude that Supreme
Court properly dismissed plaintiff's legal malpractice cause of
action on the merits. "'In order to sustain a claim for legal
malpractice, a plaintiff must establish both 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'" (Leder v Spiegel,
9 NY3d 836, 837 [2007] cert denied sub nom Spiegel v Rowland, 552
US 1257 [2008], quoting AmBase Corp. v Davis Polk & Wardwell, 8
NY3d 428, 434 [2007]; accord Hyman v Schwartz, 114 AD3d at 1112;
see Kaufman v Medical Liab. Mut. Ins. Co., 121 AD3d 1459, 1460
[2014]). Although plaintiff maintains that defendant's
professional competence was deficient and failed to conform with
                              -4-                  518430

the requirements of the parties' retainer agreements, she does
not allege, to any degree, that defendant's purported
shortcomings precluded her success in the litigation at issue or
caused her to sustain ascertainable damages (see Arnold v Devane,
123 AD3d 1202, 1204 [2014]; MacDonald v Guttman, 72 AD3d 1452,
1455 [2010]; Tabner v Drake, 9 AD3d 606, 610 [2004]). Having
failed to plead an essential element of a legal malpractice cause
of action, Supreme Court properly granted defendant's motion to
dismiss this claim (see Hyman v Schwartz, 114 AD3d at 1112;
compare Snyder v Brown Chiari, LLP, 116 AD3d 1116, 1116-1117
[2014]; Alaimo v McGeorge, 69 AD3d 1032, 1034 [2010]). Likewise,
the court's dismissal of plaintiff's claims sounding in, among
other things, unjust enrichment, breach of contract and breach of
fiduciary duty – all of which were encapsulated within and
entirely duplicative of plaintiff's legal malpractice cause of
action – was correct (see Adamski v Lama, 56 AD3d 1071, 1072-1073
[2008]; Guiles v Simser, 35 AD3d 1054, 1055 [2006]).

      Those remaining arguments that have not been expressly
discussed herein have been considered and found to be without
merit.

     Lahtinen, J.P., Garry and Rose, JJ., concur.


      ORDERED that the order entered May 2, 2013 is modified, on
the law, without costs, by reversing so much thereof as denied
plaintiff's motion to dismiss defendant's unjust enrichment
counterclaim; motion granted to that extent and said counterclaim
dismissed; and, as so modified, affirmed.

      ORDERED that the order entered September 30, 2013 is
affirmed, without costs.



                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
