                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 19, 2015                     517160
________________________________

JUAN RODRIGUEZ,
                     Appellant,
     v                                       MEMORANDUM AND ORDER

JACOBY & MEYERS, LLP, et al.,
                    Respondents.
________________________________


Calendar Date:    January 5, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                              __________


     Stephen D. Chakwin Jr., New York City, for appellant.

      Finkelstein & Partners, Newburgh (James W. Shuttleworth III
of counsel), for respondents.

                              __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (McGrath, J.),
entered April 5, 2013 in Columbia County, which, upon
reconsideration, among other things, adhered to its prior
decision granting defendants' motion to dismiss the complaint.

      This legal malpractice claim has its origins in a personal
injury action brought by plaintiff against the owner and operator
of the truck that rear-ended plaintiff's vehicle in October 2002
while it was stopped at a traffic light. Following joinder of
issue in the underlying action, plaintiff discharged his initial
counsel and, in September 2003, retained defendants to represent
his interests therein. In December 2009, defendants – in the
context of the personal injury action – moved for partial summary
judgment on the issue of liability. When that motion was denied,
plaintiff discharged defendants and retained new counsel to
                               -2-                517160

represent his interests upon appeal. Appellate counsel's efforts
were successful – with the Second Department reversing the
underlying order and granting plaintiff's motion for partial
summary judgment on the issue of liability (Rodriguez v Ryder
Truck, Inc., 91 AD3d 935 [2012]).

      Plaintiff thereafter commenced this malpractice action
against defendants contending that their delay in moving for
summary judgment deprived him of the statutory interest
theoretically due on his prospective judgment (see CPLR 5002,
5004; cf. Love v State of New York, 78 NY2d 540, 544-545 [1991];
see generally Rice v Valentine, 75 AD3d 631, 631 [2010]).
Defendants then brought a pre-answer motion to dismiss the
complaint for failure to state a cause of action, and plaintiff
cross-moved for a stay of the malpractice action pending
resolution of the damages portion of his claim in the personal
injury action. By order dated October 23, 2012, Supreme Court
granted defendants' motion and denied plaintiff's cross motion.
Plaintiff then moved to reargue contending, among other things,
that Supreme Court misapplied the standard of review applicable
to a motion to dismiss under CPLR 3211 (a) (7). By order entered
April 5, 2013, Supreme Court – although addressing the merits of
plaintiff's argument – "denied" the motion to reargue, prompting
this appeal.1

      As a general proposition, "no appeal lies from the denial
of a motion to reargue" (Gonzalez v L'Oreal USA, Inc., 92 AD3d
1158, 1160 [2012], lv dismissed 19 NY3d 874 [2012]). Where,
however, the court actually addresses the merits of the moving
party's motion, we will deem the court to have granted reargument
and adhered to its prior decision – notwithstanding language in
the order indicating that reargument was denied (see Flisch v
Walters, 42 AD3d 682, 683 [2007]; Adderley v State of New York,
35 AD3d 1043, 1043 [2006]; Grasso v Schenectady County Pub. Lib.,
30 AD3d 814, 816 n 1 [2006]). Accordingly, Supreme Court's April
2013 order is appealable as of right (see CPLR 5701 [a] [2]


     1
        Although plaintiff also belatedly filed a notice of
appeal from Supreme Court's October 2012 order, this Court
granted defendants' motion to dismiss the appeal.
                              -3-                517160

[viii]; Foley v City of New York, 43 AD3d 702, 703 [2007]).

      Turning to the merits, the standard to be applied on a
motion to dismiss for failure to state a cause of action is both
familiar and well settled – "we must afford the complaint a
liberal construction, accept as true the allegations contained
therein, accord the plaintiff the benefit of every favorable
inference and determine only whether the facts fit within any
cognizable legal theory" (He v Realty USA, 121 AD3d 1336, 1339
[2014] [internal quotation marks and citations omitted]; see
Snyder v Brown Chiari, LLP, 116 AD3d 1116, 1117 [2014]). That
said, the "favorable treatment" accorded to a plaintiff's
complaint is not "limitless" (Tenney v Hodgson Russ, LLP, 97 AD3d
1089, 1090 [2012]) and, as such, "conclusory allegations – claims
consisting of bare legal conclusions with no factual specificity
– are insufficient to survive a motion to dismiss" (Godfrey v
Spano, 13 NY3d 358, 373 [2009]; accord Barnes v Hodge, 118 AD3d
633, 633 [2014]; see Wiggins & Kopko, LLP v Masson, 116 AD3d
1130, 1131-1132 [2014]).

      "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]
[internal quotation marks and citation omitted]; accord Hyman v
Schwartz, 114 AD3d 1110, 1112 [2014], lv dismissed 24 NY3d 930
[2014]; see MacDonald v Guttman, 72 AD3d 1452, 1454-1455 [2010]).
Although the parties debate whether the decision to bring a
summary judgment motion and/or the timing thereof can give rise
to a claim for legal malpractice in the first instance (see e.g.
Siracusa v Sager, 105 AD3d 937, 938-939 [2013]; Bua v Purcell &
Ingrao, P.C., 99 AD3d 843, 846-847 [2012], lv denied 20 NY3d 857
[2013]; Hand v Silberman, 15 AD3d 167, 167 [2005], lv denied 5
NY3d 707 [2005]; Palazzolo v Herrick, Feinstein, LLP, 298 AD2d
372, 372-373 [2002]) and, further, whether plaintiff's damages –
in the absence of a final judgment in the underlying personal
injury action – are speculative, these issues need not detain us.
                              -4-                517160

      To survive defendants' motion to dismiss, it was incumbent
upon plaintiff to, among other things, "plead specific factual
allegations establishing that but for counsel's deficient
representation, there would have been a more favorable outcome to
the underlying matter" (Dweck Law Firm v Mann, 283 AD2d 292, 293
[2001]; see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d
756, 758 [2014]; Tortura v Sullivan Papain Block McGrath &
Canavo, P.C., 21 AD3d 1082, 1083 [2005], lv denied 6 NY3d 701
[2005]), i.e., an earlier – and successful – award of partial
summary judgment on the issue of liability. This plaintiff
failed to do. Noticeably absent from both plaintiff's complaint
and the bills of particulars submitted in opposition to
defendants' motion to dismiss are any factual allegations to
support plaintiff's claim that defendants' failure to file a
motion for partial summary judgment on his behalf prior to
December 2009 constituted legal malpractice. Specifically,
plaintiff failed to delineate, among other things, the general
course and defendants' overall management of the personal injury
action, including when discovery was undertaken and/or completed
or whether there were ongoing settlement discussions prior to the
filing of the underlying motion. Rather, plaintiff simply
alleged – in an entirely conclusory fashion – that "the [subject]
motion could have been made at any time once issue was joined" in
April 2003. While this theoretically is true (see CPLR 3212
[a]), absent detailed factual allegations documenting the efforts
undertaken by defendants over the course of the ensuing six years
and the manner in which the litigation progressed, plaintiff
simply cannot establish that, had the motion for partial summary
judgment been brought prior to December 2009, it would have been
successful (compare Fielding v Kupferman, 65 AD3d 437, 441-442
2009]). This absence of proof is fatal to plaintiff's
malpractice claim and, therefore, Supreme Court properly granted
defendants' motion to dismiss upon this ground.

     Lynch and Clark, JJ., concur.
                               -5-               517160

McCarthy, J.P. (dissenting).

      The standard on a motion to dismiss for failure to state a
cause of action, as the majority correctly states, requires
courts to "afford the complaint a liberal construction, accept as
true the allegations contained therein, accord the plaintiff the
benefit of every favorable inference and determine only whether
the facts fit within any cognizable legal theory" (He v Realty
USA, 121 AD3d 1336, 1339 [2014] [internal quotation marks and
citations omitted]). Under that standard, the complaint here was
sufficient. I, therefore, respectfully dissent.

      While conclusory allegations containing no facts, or just
legal statements, are insufficient to survive such a motion (see
Godfrey v Spano, 13 NY3d 358, 373 [2009]), complaints need not
include all of the facts and details supporting a cause of action
(see CPLR 3013). Although the complaint here is sparse on
factual details, it alleges that plaintiff retained defendants in
September 2003 for his personal injury action, after joinder of
issue, and that, in December 2009, defendant moved for partial
summary judgment on liability based on "long-established case
law" regarding rear-end collisions. The motion was ultimately
successful. Plaintiff also alleged that the liability issue
presented in the summary judgment motion could have been made in
2003, and the failure to make the motion earlier – which was
allegedly due to defendants' negligence and failure to exercise
the care, skill and diligence typically possessed by members of
the legal community – deprived plaintiff of prejudgment interest
that is calculated from the determination of liability. The
complaint further alleges that "[d]efendants' negligence was a
proximate cause of plaintiff's loss of over six years of 9%
interest on the judgment in the underlying case."

      The majority correctly states that the complaint does not
contain any details concerning defendants' efforts during the six
years, which could establish that the motion would have been
successful earlier. But plaintiff may not possess such facts or
information and may only learn them through the discovery process
in this action. Plaintiff is not required to prove his cause of
action at this procedural stage; he is only required to make
allegations as to each element of a cause of action that he will
                              -6-                  517160

later attempt to prove (see Tenzer, Greenblatt, Fallon & Kaplan v
Ellenberg, 199 AD2d 45, 45 [1993]). Plaintiff alleged that the
motion could have been made earlier and defendants' failure to
make the motion in a timely fashion was improper under the
standards of the profession. These allegations will need to be
fleshed out and proven at a later stage of the action, but we are
only at the pleading stage. Even if plaintiff can never prove
that defendants should have made the motion in September 2003,
the complaint alleges that defendants had no valid reason for
failing to make the motion in a timely fashion, which could be
liberally construed to include a date later than 2003 but well
before the 2009 date when defendants eventually made the motion.
A plaintiff may not merely allege legal conclusions, but in this
legal malpractice claim plaintiff was permitted to rely on legal
statements concerning the right to prejudgment interest and the
logical conclusion that an earlier determination of liability
would permit a greater accrual of interest (i.e., but for the
delay in filing the motion, plaintiff would ultimately have
collected a larger amount in interest). It may have been
preferable for plaintiff to include more information in the
complaint, and he may or may not be able to eventually establish
that defendants' actions constituted legal malpractice. For
purposes of this motion to dismiss for failure to state a cause
of action, however, the complaint addressed each element, so
defendants' motion should have been denied (see Rivas v Raymond
Schwartzberg & Assoc., PLLC, 52 AD3d 401, 401 [2008]; Gelfand v
Oliver, 29 AD3d 736, 737 [2006]; Tenzer, Greenblatt, Fallon &
Kaplan v Ellenberg, 199 AD2d at 45).


     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
