        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

64
CA 11-01464
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GORSKI, JJ.


ELIZABETH ALDEN, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BRINDISI, MURAD, BRINDISI, PEARLMAN, JULIAN
AND PERTZ (“THE PEOPLE’S LAWYER”),
DEFENDANT-RESPONDENT.


ELIZABETH ALDEN, PLAINTIFF-APPELLANT PRO SE.

BRINDISI, MURAD, BRINDISI, PEARLMAN, JULIAN & PERTZ, LLP, UTICA
(RICHARD PERTZ OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Oneida County (Samuel D. Hester, J.), entered April 6, 2011 in
a legal malpractice action. The order and judgment granted the motion
of defendant to dismiss the complaint pursuant to CPLR 3211 (a) (7)
and dismissed the complaint.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: Supreme Court properly granted defendant’s motion to
dismiss the complaint pursuant to CPLR 3211 (a) (7) in this legal
malpractice action. Accepting as true the facts set forth in the
complaint and according plaintiff the benefit of all favorable
inferences arising therefrom, as we must in the context of the instant
motion (see generally Leon v Martinez, 84 NY2d 83, 87-88), we conclude
that the complaint fails to plead a cognizable theory for legal
malpractice because it does not permit the inference that any alleged
negligence by defendant was a proximate cause of plaintiff’s damages
(see Pyne v Block & Assoc., 305 AD2d 213). The proximate cause of any
damages sustained by plaintiff was not the alleged legal malpractice
of defendant but, rather, the proximate cause of plaintiff’s damages
was either “the intervening and superseding failure” of plaintiff to
retain successor counsel in a timely manner or the failure of
successor counsel to commence a timely medical malpractice action on
plaintiff’s behalf (Pyne, 305 AD2d 213). Indeed, we note that the
record establishes that defendant afforded plaintiff and her successor
counsel “sufficient time and opportunity to adequately protect
plaintiff’s rights” (Somma v Dansker & Aspromonte Assoc., 44 AD3d 376,
377; see Maksimiak v Schwartzapfel Novick Truhowsky Marcus, P.C., 82
AD3d 652; Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641; cf. Wilk v
Lewis & Lewis, P.C., 75 AD3d 1063, 1066-1067). We have reviewed
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                                                         CA 11-01464

plaintiff’s remaining contentions and conclude that they are either
unpreserved for our review or they are without merit.




Entered:   January 31, 2012                     Frances E. Cafarell
                                                Clerk of the Court
