The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 were read on this motion to/for DISMISS. DECISION ORDER ON MOTION In this legal malpractice action commenced by plaintiff Patricia Turso Drasche, defendants Edelman & Edelman, P.C. (“the firm”), Martin Edelman (“Edelman”), and Howard Engle (“Engle”) (collectively “defendants”) move, pursuant to CPLR 3211(a)(7), to dsismiss the complaint. Plaintiff opposes the motion. After consideration of the parties’ contentions, as well as a review of the relevant statutes and case law, the motion is decided as follows. FACTUAL AND PROCEDURAL BACKGROUND On or about December 21, 2015, plaintiff was injured at 2323 Broadway in Manhattan, which premises were owned or leased by Banana Republic, LLC (“Banana Republic”) and/or The Gap. Doc. 1 at par. 6. Plaintiff thereafter retained the firm to undertake an investigation of the incident and to commence an action on her behalf against Banana Republic and/or The Gap. Id.1 The retainer agreement between the firm and plaintiff, annexed to the complaint as exhibit A, reflects, inter alia, that the firm was “authorized to enter into negotiations regarding possible settlement, but will not settle or compromise this matter without the prior express consent of Client.” Ex. A to Doc. 1 at par. 1(b); see also par. 4(h). Paragraph 8(a)(ii) required the firm to “keep [plaintiff] informed of the status of this matter and consult with [her] when appropriate.” Id. at par. 8(a)(ii). On or about February 11, 2016, the firm commenced an action on plaintiff’s behalf as against Banana Republic and The Gap (“the underlying action”). Doc. 1 at par. 10; Doc. 7. Plaintiff was deposed in the underlying action on December 13, 2016, during which proceeding she was represented by Engle. Id. at par. 12. Following plaintiff’s deposition in the underlying action, defendants allegedly made a settlement offer to Engle, who in turn advised Edelman, an “owner or shareholder” of the firm, about the offer. Id. at 7, 14. However, defendants did not advise plaintiff that a settlement offer had been made. Id. at par. 16. Banana Republic and The Gap thereafter moved for summary judgment in the underlying action. Id. at par. 17. By order dated July 6, 2018, this Court (Edmead, J.) granted the motion and the complaint was dismissed. Id. at pars. 17-18; Doc. 9. By order dated May 9, 2019, the Appellate Division, First Department affirmed Justice Edmead’s order of dismissal. Doc. 10. On June 1, 2020, plaintiff commenced the captioned action against defendants alleging that: 1) defendants negligently or intentionally failed to keep her apprised of settlement negotiations; 2) defendants breached the retainer agreement by failing to notify her about the settlement negotiations; and 3) defendants violated section 1.4(a)(l)(iii) of the New York Rules of Professional Conduct by failing to notify her that a settlement offer had been made. Doc. 1 at pars. 21-29. Specifically, she claims that the defendants’ failure to advise her about the settlement offer “deprived [her] of the opportunity to settle her lawsuit and thereby obtain a monetary recovery for her injuries, pain and suffering, and medical bills.” Id. at par. 20. Defendants now move, pursuant to CPLR 3211(a)(7), to dismiss the complaint on the ground that it fails to state a cause of action. Doc. 4. In an affirmation in support, counsel for defendants argues that plaintiff’s legal malpractice claim must be dismissed for failure to state a cause of action since insofar as it is speculative and conclusory. Doc. 5. Specifically, defendants’ counsel maintains that plaintiff fails to refer to the amount of the settlement offer or the identity of the individual who made it. They further assert that the plaintiff’s claims for breach of contract and violation of the Rules of Professional Conduct are duplicative of her legal malpractice claim. Id. Additionally, defendants urge that plaintiffs legal malpractice claim must be dismissed since it fails to plead that she would have prevailed but for their negligence. Id. Further, defendants maintain that, even assuming that plaintiff established that they were negligent and that there was “but for” causation, the legal malpractice claim must be dismissed since it fails to allege ascertainable damages. Id. In support of the motion, defendants submit affidavits by Edelman and Engle, as well as by Michael J. Prisco, Esq. of McAndrew Conboy & Prisco, which firm represented defendants in the underlying matter. Docs. 11-13. Prisco represents that neither he nor anyone at his firm made a settlement offer to plaintiff in the underlying matter. Doc. 11. Edelman represents that neither defendants nor their attorneys in the underlying action ever made a settlement offer and that Engle never told him that such an offer had been made. Doc. 12. In opposition to the motion, plaintiff asserts that she has adequately pleaded all three causes of action set forth in the complaint. Doc. 15. In reply, defendants substantially reiterate the arguments made in their initial affirmations/affidavits. Doc. 21. LEGAL CONCLUSIONS In determining a motion to dismiss pursuant to CPLR 3211, “the pleading is to be afforded a liberal construction. [The court is to] accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 NY2d 83, 87-88 [1994] [internal citations omitted]). A pleading will be dismissed if it fails to state a cause of action. See CPLR 3211 (a)(7). A claim for legal malpractice requires that a plaintiff allege facts that, if proven at trial, would demonstrate that the attorney “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007] [internal quotation marks and citation omitted]; see Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271-272 [1st Dept 2004]). Kaplan v. Conway & Conway, 173 AD3d 452, 452 (1st Dept 2019). To establish proximate cause in a legal malpractice action, the plaintiff must establish that he or she would not have sustained damages “but for” the attorney’s negligence (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). Failure to make this showing will result in the dismissal of the claim regardless of whether attorney was negligent (see Snolis v. Clare, 81 AD3d 923, 925 [2d Dept 2011]). “Unsupported factual allegations, conclusory legal argument or allegations contradicted by documentation, do not suffice” to state a cause of action for legal malpractice (Dweck Law Firm v. Mann, 283 AD2d 292, 293 [1st Dept 2001]). Although plaintiff does not specifically allege that defendants “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442), she does allege that defendants were “negligent and [departed] from acceptable practice for attorneys engaged in the practice of law in the State of New York.” Doc. 1 at par. 20. Viewing this claim in a light most favorable to plaintiff, this Court finds that it adequately sets forth the standard of care from which defendants allegedly deviated. However, plaintiff fails to allege that she would not have sustained damages “but for” the defendants’ alleged negligence (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). As noted above, plaintiff claims that the defendants’ failure to advise her about the settlement offer “deprived [her] of the opportunity to settle her lawsuit and thereby obtain a monetary recovery for her injuries, pain and suffering, and medical bills.” Id. at par. 20 (emphasis added). However, she does not claim that she would have accepted the settlement offer had she known about it. Thus, her legal malpractice claim must be dismissed (see Magnacoustics, Inc. v. Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562 [2d Dept 2003] [legal malpractice claim dismissed where plaintiffs failed to demonstrate that, but for defendants' alleged negligence in failing to advise them that a settlement offer had been made, they would have accepted the offer and would not have sustained any damages]; Cannistra v. O’Connor, McGuinness, Conte, Doyle, Oleson & Collins, 286 AD2d 314, 315-316 [2d Dept 2001] [plaintiffs failed to establish that, but for defendants' alleged negligence in failing to advise them of a deadline for accepting a settlement offer, they would have accepted it]). Moreover, since “mere speculation of a loss resulting from an attorney’s alleged omissions…is insufficient to sustain a claim” for legal malpractice” (Gallet, Dreyer & Berkey, LLP v. Basile, 141 AD3d 405, 405-406 [1st Dept 2016] [internal quotation marks omitted]), plaintiffs claim that she may have accepted a settlement offer had she known about it must fail for this reason as well. Since plaintiff’s breach of contract claim is duplicative of the legal malpractice claim, it, too, must be dismissed (See Olsen v. Smith, 187 AD3d 675 [1st Dept 2020], citing Courtney v. McDonald, 176 AD3d 645, 646 [1st Dept 2019]). Finally, although section 1.4(a)(l)(iii) of the New York Rules of Professional Conduct requires an attorney to “(1) promptly inform the client of…(iii) material developments in the matter including settlement or plea offers”, it is well settled that an allegation of “malpractice based on a violation of the New York Rules of Professional Conduct…does not, without more, support a malpractice claim (Cohen v. Kachroo, 115 AD3d 512, 513 [1st Dept 2014] [citation omitted]). Thus, plaintiff’s claim based on a violation of this provision must be dismissed. The remaining contentions are either without merit or need not be addressed given the findings above. Accordingly, it is hereby: ORDERED that the motion by defendants Edelman & Edelman, P.C., Martin Edelman, and Howard Engle is granted, and the complaint is dismissed; and it is further ORDERED that the Clerk shall enter judgment accordingly. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: February 12, 2021
