The following e-filed documents, listed by NYSCEF document number (Motion 005) 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117 were read on this motion to/for RESTORE PRIOR MOTION. DECISION ORDER ON MOTION Upon the foregoing documents: This action was brought by plaintiff Phillips Nizer LLP, wherein plaintiff sought to be paid for legal work performed on behalf of defendant Allison Scollar. Defendant filed an answer that included a counterclaim for malpractice. The underlying action involved defendant’s custody, visitation and child support litigation. On November 15, 2017, plaintiff filed a motion for summary judgment on its claims and a motion to dismiss the counterclaim. Although defendant prepared opposition, defendant failed to file said opposition with the Clerk. Defendant did send a copy of the unfiled opposition to plaintiff. Plaintiff file a reply and attached defendant’s opposition to the reply. The Court scheduled the matter for oral argument on May 2, 2018 and defendant failed to appear. On the oral argument date, the Court entered an order granting summary judgment on default to plaintiff on its account stated cause of action and also found that arguments and facts contained in defendant’s unfiled opposition did not refute plaintiff’s account stated claim. Although the Court inadvertently failed to render a decision on plaintiff’s motion to dismiss the malpractice claim, the Court nevertheless marked this matter disposed. The instant motion and cross-motion were brought following this Court’s order dated dated May 15, 2019 which states that “defendant’s counterclaims remain unresolved, the parties may restore this action to address the counterclaims by stipulation or motion.” Defendant’s motion seeks to restore the counterclaim and plaintiff’s cross-motion seeks to either reargue the May 15, 2019 decision or in the alternative, seeks renewal of the Court’s May 2, 2018 decision and the Court’s failure to address the motion to dismiss the counterclaim. The motion to restore and cross-motion to renew are granted solely for the purposes of restoring this action to determine whether the malpractice counterclaim survives. Thus, the Court will reexamine whether defendant has stated a claim for malpractice. When deciding a motion to dismiss pursuant to CPLR §3211, the court should give the pleading a “liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff the benefit of every possible favorable inference” (Landon v. Kroll Laboratory Specialists, Inc., 22 NY3d 1, 5-6 [2013]; Faison v. Lewis, 25 NY3d 220 [2015]). However, if a complaint fails within its four corners to allege the necessary elements of a cause of action, the claim must be dismissed (Andre Strishak & Associates, P.C. v. Hewlett Packard & Co., 300 AD2d 608 [2d Dept 2002]. Under CPLR §3211(a)(7), the court “accepts as true the facts as alleged in the complaint and affidavits in opposition to the motion, accords the plaintiff the benefit of every possible favorable inference, and determines only whether the facts as alleged manifest any cognizable legal theory” (Elmaliach v. Bank of China Ltd., 110 AD3d 192, 199 [1st Dept 2013] quoting Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]). “To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Dempster v. Liotti, 86 AD3d 169 [2d Dept 2011] citing Leder v. Spiegel, 9 NY3d 836 [2007] cert denied sub nom. Spiegel v. Rowland, 552 US 1257 [2008]). Here, defendant’s Answer with Counterclaim did not state a cause of action for malpractice. Although the Answer with Counterclaim was replete with conclusory statements alleging that plaintiff committed malpractice, failed to exercise reasonable care and that the quality of the representation was substandard, it failed to articulate any facts that could give rise to an inference of malpractice. Thus, the Answer with Counterclaim failed to state a cause of action for malpractice. Although when addressing a CPLR 3211(a)(7) motion, affidavits may be freely accepted by a court to remedy any defects in the complaint (Rovello v. Orofino Realty Co., 40 NY2d 633 [1976]), here, even considering the unfiled opposition and the documents in support of this motion, defendant has still failed to state a claim for malpractice. In these documents, defendant supplements the facts relating to plaintiff’s alleged malpractice. However, adding the supplemental facts still does not save the counterclaim from dismissal. Defendant discusses that she disagreed with the necessity of some of the work (and the costs associated with such work), that plaintiff was very expensive as compared to the other side and generally that the costs were not in line with the quality of service provided. None of those “facts” even if true can give rise to a claim for malpractice for failing to exercise ordinary reasonable skill. Defendant also discusses two other specific complaints. First, that her intention and desire was that a stipulation for summer visitation schedule be valid for the future. Defendant complains that the stipulation was unenforceable as it did not include 2017, 2018 and 2019 and only clearly included 2016. Defendant’s allegations are refuted by the documentary evidence of the stipulation which discusses 2016 and sets forth the schedule for that year and then states in plain language “In 2017 and each year thereafter…the parties will alternate the forgoing schedule” and required the parties to make adjustments as necessary to accommodate the child’s schedule. To the extent that said stipulation was not “so-ordered” by the Court and defendant argues that the failure by plaintiff to have it “so-ordered” made the stipulation unenforceable, the stipulation also contains an express provision that the stipulation shall be enforceable even in the absence of the expected so-ordering. In any event, the Answer with Counterclaim was dated April 23. 2017 (filed on June 6, 2017). According to her affidavit the issues with the Summer 2017 occurred after an incident in September 2017, which had not occurred at the time she wrote the counterclaim. The second specified malpractice allegedly occurred in connection with child support petitions (modifications and violations). The affidavits allege that due to a non-appearance by plaintiff, these petitions were dismissed. However, a reading of the documents submitted by the parties, including a stipulation resolving the matters signed by defendant, refutes these allegations as well. Defendant signed the stipulation that resolved the child support petitions which included the basis for the non-appearance. As defendant has failed to state any claim for malpractice, her counterclaim must be dismissed. Accordingly, it is therefore ORDERED that the motion to restore and the cross-motion to renew are granted to the extent that the matter is restored for the limited purposes of temporarily restoring the counterclaim; and it is further ORDERED that this counterclaim is dismissed as defendant has failed to state a claim for legal malpractice; and it is further ORDERED that the judgment previously entered was not at issue in these motions and is not disturbed by this decision, the matter shall be marked as disposed by the Clerk of the Court. This constitutes the decision and order of the Court. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED DENIED GRANTED IN PART X OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: March 13, 2020
