When the Court of Appeals addresses CPLR 3013's pleading requirements, litigators must take notice. Nonetheless, we suspect that most readers missed an important decision on the subject issued by the Court in June, just before the summer season began. How can that be?

Expedited Review Procedure in the Court of Appeals

For starters, the Court's opinion in Mid-Hudson Valley Federal Credit Union v. Quartararo & Lois, 31 N.Y.3d 1090 (2018), is just two sentences in length and contains only a passing citation to CPLR 3013. Furthermore, it is the product of the Court's expedited review procedure. 22 N.Y.C.R.R. §500.11 (“Alternative Procedure for Selected Appeals”); see David D. Siegel & Patrick M. Connors, New York Practice §536 (6th ed. 2018). The Court can invoke this procedure on its own motion, and is now doing so more frequently in important cases such as Mid-Hudson.

When the Court elects this expedited review, also known as the sua sponte merits track, it determines the appeal on the record and briefs submitted in the appellate division, and a “letter” submitted to the Court of Appeals by both the appellant and respondent. A reply letter is not permitted without the Court's permission and oral argument is not conducted. Appeals handled by the Court in this fashion can therefore easily escape the watchful eye of the bar and may not allow for a vetting of all the legal issues at hand.

'Mid-Hudson' Complaint and CPLR 3211(a)(7) Motion to Dismiss

Mid-Hudson was a legal malpractice action in which the defendants made a motion to dismiss an amended complaint under 3211(a)(7). The amended complaint alleged that, but for defendants' failure to provide timely and competent legal services, plaintiff would have succeeded in the underlying debt collection and mortgage foreclosure actions in which the defendant law firm was representing the plaintiff. In addition, the pleading alleged that if the defendants had not failed to advise plaintiff on “the cases in a timely and competent manner …, [plaintiff] would not have incurred a loss in time and value in the debt on the collection and foreclosure cases assigned to defendant[s].” Mid-Hudson, 155 A.D.3d 1218, 1220 (3d Dep't 2017).

The Supreme Court noted that CPLR 3026, a statute that has been untouched since 1964, requires that pleadings be liberally construed and that the court's role on a pre-answer motion to dismiss for failure to state a cause of action “is to determine whether the facts fit within any cognizable legal theory upon accepting the facts, as alleged, as true.” Mid-Hudson, 2016 WL 10906434, *1 (Sup. Ct., Ulster County 2016). Applying this familiar standard and citing to the Court of Appeals case law recognizing it, the court denied the motion.

The Third Department Reversal

On appeal, the majority in the Third Department classified the amended complaint's allegations as “vague and conclusory” and stressed that “plaintiff failed to plead any specific facts, which, if accepted as true, would establish a legal malpractice claim.” Mid-Hudson, 155 A.D.3d at 1220. For example, the amended complaint did not mention any specific instance of deficient representation or any example of erroneous advice provided by defendants. “Other than stating that defendants represented plaintiff in foreclosure actions,” the majority noted, the amended complaint did “not allege, and, more critically, it cannot reasonably be inferred from such pleading, what defendants allegedly did or did not do in a negligent fashion. The amended complaint is not just sparse on factual details—rather, it is wholly devoid of them.” Id. at 1220-21.

The majority ruled that notwithstanding the CPLR's liberal pleading requirements, “bare legal conclusions with no factual specificity do not suffice to withstand a motion to dismiss.” Id. at 1219. The court explained that “while a recitation of the elements of a cause of action may meet that component of CPLR 3013 requiring that the statements in a pleading provide notice of 'the material elements of [each] cause of action,' the statute also requires that the pleading's statements be 'sufficiently particular to give the court and parties notice of the transactions, occurrences or series of transactions or occurrences, intended to be proved.'” Id. at 1220. The majority also quoted from a recent Court of Appeals decision addressing a CPLR 3211(a)(7) motion to dismiss, which stated that “[d]ismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.” Connaughton v. Chipotle Mexican Grill, 29 N.Y.3d 137, 142 (2017). Given the absence of detailed facts in the amended complaint, the Third Department ruled that the legal malpractice cause of action should have been dismissed.

The Dissent

There was a two judge dissent on this point in Mid-Hudson, which contended that “[t]he allegations of a complaint generally need not be set forth in detail; it is sufficient if the parties are put on notice of the underlying transactions or occurrences, and the material elements of the cause of action are stated (see CPLR 3013).” Mid-Hudson, 155 A.D.3d at 1222 (Garry, J., concurring in part and dissenting in part). While acknowledging that the allegations of legal malpractice in the amended complaint lacked detail, the dissent argued that the pleading nonetheless included sufficient factual allegations to provide the degree of notice necessary to satisfy CPLR 3013. The dissent quoted from the landmark Foley decision, which in the infancy of the CPLR carried out its intention to make pleading requirements less rigid by holding that “a complaint, attacked for insufficiency, is deemed to allege 'whatever can be implied from its statements by fair and reasonable intendment.'” Foley v. D'Agostino, 21 A.D.2d 60, 65 (1st Dep't 1964); see Siegel & Connors, New York Practice §208.

The dissent also cautioned that the decisions “relied upon by the majority should not be misunderstood to require a higher standard of detail and specificity for legal malpractice claims than those imposed upon other causes of action by the familiar and fundamental standards of notice pleading.” Mid-Hudson, 155 A.D.3d at 1223 (Garry, J., concurring in part and dissenting in part). In this regard, CPLR 3016 requires that certain claims be pleaded with a somewhat heightened specificity. See Siegel & Connors, New York Practice §216. For example, the entire court in Mid-Hudson agreed that plaintiff's fraud claim did not satisfy the pleading requirements in CPLR 3016(b). A cause of action for legal malpractice is not held to any heightened pleading standard, however, and is therefore subject to the liberal pleading requirements in CPLR 3013. See also CPLR 3026 (“Pleadings shall be liberally construed.”). Applying these principles, the dissent stated:

When plaintiff's allegations are construed liberally, accepted as true and given the benefit of every favorable inference, the cause of action sets forth the elements of a legal malpractice claim and provides notice of the “transactions, occurrences, or series of transactions or occurrences, intended to be proved” (CPLR 3013)—that is, the foreclosure and collection actions in which defendants were retained by plaintiff to provide timely, competent and professional representation, but failed to do so.

Mid-Hudson, 155 A.D.3d at 1225 (Garry, J., concurring in part and dissenting in part).

Did the Court of Appeals Change the Law of Pleading?

As discussed above, the Court of Appeals entertained the appeal in Mid-Hudson under its expedited review procedure and affirmed the Third Department's order in a brief opinion, holding that plaintiff failed to state a claim for legal malpractice against defendants because “the amended complaint failed to allege facts 'sufficiently particular to give the court and [defendants] notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved.' (CPLR 3013).” Mid-Hudson, 31 N.Y.3d 1090, 1091 (2018). It is interesting to note that the Court of Appeals appeared to find that plaintiff satisfied its burden to plead “the material elements” of its legal malpractice cause of action under CPLR 3013.

During the last decade, pleading requirements in federal courts have become far more demanding than those in New York state courts. See Siegel & Connors, New York Practice §211. The experience on the federal side has little to recommend it.

Where do we now stand on this important issue in New York state courts? As the dissent in Mid-Hudson aptly warns, “[t]he majority holding introduces unpredictability and confusion into what was previously settled law, opens the door to the excessive litigation that the CPLR was expressly designed to avoid, and contravenes decades of careful and well-founded application of the principles of notice pleading.” Mid-Hudson, 155 A.D.3d at 1222 (Garry, J., concurring in part and dissenting in part). Whether the Court of Appeals affirmance in Mid-Hudson constitutes a meaningful shift from New York's liberal pleading requirements is a question that can only be resolved with the passage of time. Those drafting pleadings must take careful note of the matter, however, and be sure to supplement pleadings with sufficient facts to provide the “notice” now seemingly required under the holding in Mid-Hudson.

Recommendations

If a complaint is called into question for a lack of sufficiency by a CPLR 3211(a)(7) motion, there are several options to consider, in addition to simply opposing the motion. As the plaintiff did in Mid-Hudson, a party can amend the pleading as of right under CPLR 3025(a). See Siegel & Connors, New York Practice §236. While a party will usually have only one as-of-right amendment, a party can make a cross-motion for permission to amend a pleading under CPLR 3025(b) if an opponent claims that the amended pleading is also deficient. See id. at §237, §273 (discussing procedure when moving party seeks to direct CPLR 3211(a) motion to amended pleading). The party opposing a motion under CPLR 3211(a)(7) can also request that the court allow leave to replead if it grants the motion. This will allow the plaintiff to correct any deficiencies perceived by the court. See id. at §275. Finally, a plaintiff whose action has been dismissed on a CPLR 3211(a)(7) motion for failure to state a cause of action can invoke the six-month extension in CPLR 205(a) to commence a new action. See id. at §52. A new action with a complaint identical to the first will be barred by res judicata, but if the new complaint remedies the deficiency, the action can proceed. See id. at §276.

Patrick M. Connors is the Albert and Angela Farone Distinguished Professor in New York Civil Practice at Albany Law School. He is the author of Siegel & Connors, New York Practice (6th ed. 2018).