The following documents, numbered via NYSCEF, were read on this motion, to wit: Document Nos: 23-33, and 42-48, respectively. Oral argument was heard by the court on December 15, 2022. This is a Memorandum Decision and Order on Motion Sequence #002. MEMORANDUM DECISION AND ORDER I. Facts This is an action for legal malpractice, arising out of an underlying mortgage foreclosure proceeding, entitled Shaughnessy Capital, LLC v. Richmond Hospitality, LLC, et al., bearing Richmond County Supreme Court Index No.: 152641/2019. In September 2019 Richmond Hospitality, LLC [hereinafter "Richmond Hospitality"] retained Defendants [hereinafter "Abrams Fensterman"] to represent them in the underlying foreclosure action brought by Shaughnessy Capital, LLC. Abrams Fensterman filed an Answer on Defendant’s behalf in the underlying foreclosure action. Shaughnessy Capital then filed a motion for summary judgment. Abrams Fensterman failed to oppose the motion and to appear in Court on the return date causing the motion to go before the Court unopposed, and in May 2021, the motion was granted and an approximately $7.8 million judgment was entered against Defendants. In July 2021, Abrams Fensterman moved to vacate the May 2021 order granting Shaughnessy Capital’s motion for summary judgment. In October 2021, the motion to vacate was denied by Justice Wayne Ozzi. Defendants allege that Abrams Fensterman failed to exercise care and skill by failing to oppose the summary judgment motion, and that the failure to do so, was the proximate cause for the judgment against them. Defendants further allege that had Abrams Fensterman opposed the motion, they would have prevailed in the underlying foreclosure action by advancing the defense that money was not accounted for properly by the lender, and that money was released without Defendant’s prior knowledge or approval. Abrams Fensterman alleges that the First Amended Verified Complaint in the within action, fails to state a cause of action, and/or is barred by documentary evidence. II. Discussion In determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must “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]; see Katsoris v. Bodnar & Milone, LLP, 186 AD3d 1504 [2d Dept 2020]). A cause of action alleging legal malpractice should set forth facts showing 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 the plaintiff to sustain actual and ascertainable damages (see Katsoris v. Bodnar & Milone, LLP, 186 AD3d at 1505; Dempster v. Liotti, 86 AD3d 169 [2d Dept 2011]). The plaintiff must plead actual ascertainable damages resulting from the attorney’s negligence (see Katsoris Bodnar & Milone, LLP, 186 AD3d at 1506; Dempster v. Liotti, 86 AD3d at 177). A complaint in a legal malpractice action will be dismissed pursuant to CPLR 3211(a)(7) where “it fails to plead specific factual allegations demonstrating that, but for the…defendant’s alleged negligence, there would have been a more favorable outcome in the underlying proceeding or that the plaintiff would not have incurred any damages” (Keness v. Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813 [2d Dept 2013]). Pursuant to CPLR 3211[a][1], a defendant may move to dismiss a cause of action on the ground that “a defense is founded upon documentary evidence.” A motion to dismiss a complaint based upon CPLR 3211 [a][1] may be granted “only where the documentary evidence utterly refutes [a] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins Co of NY, 98 NY2d 314 [2002]). “In order for evidence to qualify as ‘documentary’ it must be unambiguous, authentic and undeniable” (Granada Condominium III Ass v. Palomino, 78 AD3d 996, 996-997 [2d Dept 2010]). Here, the First Amended Verified Complaint alleges that Abrams Fensterman failed to oppose the motion for summary judgment in the underlying foreclosure action, and that, but for that failure, Defendants would have successfully defended and prevailed in the action. In doing so, however, the First Amended Verified Complaint makes only a single vague allegation to support the claim that Defendants would have prevailed in the underlying foreclosure action, to wit: “That but for the professional negligence of the Defendant in not appearing or opposing the motion for summary judgment that was brought against the within Plaintiffs in the underlying case of Shaughnessy Capital LLC v. Richmond Hospitality, LLC the within Plaintiff “would have been successful in defeating said motion for summary judgment, as well as, the underlying action by advancing the defense that they had to the position taken by the lender, Shaughnessy Capital, LLC, to wit, that the money not accounted for properly and money was released without the within Plaintiff’s prior knowledge or approval.” [Emphasis added]. There are no other allegations in the First Amended Complaint bearing on the claim that Richmond Hospitality would have successfully defended against, and prevailed in, the underlying foreclosure action. This lone allegation is insufficient to plead the “but for” element of a cause of action for legal malpractice because it is too conclusory and impermissibly speculative. The First Amended Complaint [1] does not allege that Richmond Hospitality did not default under the Loan Documents, [2] does not allege that liens were never filed against the subject property, [3] does not allege that Richmond Hospitality had no obligation to remove liens filed against the subject property under the Loan Documents, [4] does not allege that Richmond Hospitality otherwise fulfilled its obligations under the Loan Documents, [5] does not allege that Richmond Hospitality did not receive notice of a default from Shaughnessy Capital, LLC, and [6] does not allege that Richmond Hospitality cured the defaults. The First Amended Verified Complaint makes only the foregoing disjointed allegation that can be fairly characterized as vague, conclusory, and impermissibly speculative. There is no way to discern from this allegation how or on what factual basis, Richmond Hospitality would have prevailed in the underlying foreclosure action. Even given the First Amended Verified Complaint’s allegations the benefit of every favorable inference, there is still no way to know how Defendants claim they would have successfully defended the underlying foreclosure action, and the allegations of their default under the Loan Documents. The allegations that Richmond Hospitality had a meritorious defense to the underlying foreclosure action because “Shaughnessy Capital did not ‘account’ or released money without Richmond Hospitality’s “prior knowledge and approval” are too conclusory and speculative to state a cause of action for legal malpractice. A plaintiff/mortgagee in a mortgage foreclosure action is entitled to judgment upon proof of and executed note and mortgage by the mortgagor-defendant along with proof of a default there under (Delta Funding Corp v. Yaede, 268 AD2d 554 [2d Dept 2000]). In the mortgage foreclosure arena, it is clear that a mortgagor may be relieved from his default under a mortgage upon a showing of waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct by the mortgagee is clear (see Nassau Trust Co v. Montrose Concrete Prods Corp, 56 N Y2d 175, [1982]). However, fraud even of this type is no defense where it was not committed against the mortgagor or where it concerns a fraud related to actions by others not connected with the mortgagee (see Deutsche Bank Nat Trust Co v. Gordon. 84 AD3d 443 [1st Dept 2011]: Delta Funding Corp v. Yaede, 268 AD2d 554 [2d Dept 2000]: Prudential Ins Co of America v. Kelly, 174 AD2d 717 [2d Dept 1991]: Marine Midland Bank v. Fillippo, 276 AD2d 601 [2d Dept 2000]). Moreover, a mortgage may not be set aside solely because the underlying transaction was tainted by a fraudulent representation (see, Joanne Homes v. Dworetz, 25 NY2d 112 [1969]). It is thus apparent that something more than a mere tainting of the underlying transaction by reason of a misrepresentation must be established in order for the court to deny an established foreclosure and sale upon equitable grounds. Here, viewing the complaint in the light most favorable to the plaintiff (see Leon v. Martinez, 84 NY2d at 87-88), it failed to plead specific factual allegations demonstrating that, but for the defendant’s alleged negligence, there would have been a more favorable outcome in the underlying action, or that the plaintiff would not have incurred any damages (id.; Tortura v. Sullivan Papain Block McGrath & Cannavo, PC, 21 AD3d at 1083). A motion to dismiss based upon documentary evidence pursuant to CPLR 3211 [a][1] should be granted where the documentary evidence utterly refutes the plaintiff’s factual allegations and conclusively establishes a defense as a matter of law (J & JT Holding Corp v. Deutschland Bank Nat’l Tr Co, 173 AD3d 704 [2d Dept 2019]; Gould v. Decolator, 121 AD3d 845 [2d Dept 2014]). The documentary evidence must be unambiguous, authentic, and essentially undeniable such as contracts and judicial records (Fontanetta v. John Doe 1, 73 AD3d 78 [2d Dept 2010]; see also J & JT Holding, supra). It is clear to this Court that the documentary evidence in this case utterly refutes Richmond Hospitality’s allegation that it would have successfully defended and prevailed in the underlying foreclosure action, and therefore conclusively establishes Abrams Fensterman’s defense in this malpractice action, as a matter of law. Specifically, the affidavit the Richmond Hospitality submitted by Sebastian Faraone [the Faraone Affidavit] acknowledges that Richmond Hospitality was in default under the Loan Documents because one or more liens were filed against the subject property. The fact that the Faraone Affidavit takes the position that the default was the result of the misappropriation of funds by Richmond Hospitality’s general contractor “UMF”, is of no consequence to Shaughnessy Capital’s entitlement to judgment in the underlying foreclosure action (Chemical Bank v. Bowers, 228 AD2d 407 [2d Dept 1996] (“while the [defendant/mortgagor] may have been defrauded by the home improvement contractor to whom she transferred a portion of the loan proceeds, that is not a defense to this foreclosure action”; see also Miller Planning Corp v. Wells, 253 AD2d 859 [2d Dept 1998]). Richmond Hospitality defaulted under the Loan Documents, and its claims of misappropriation, conspiracy, and the like against UMF and/or KOW, and its claims that Shaughnessy Capital, LLC was negligent, are insufficient as a matter of law to excuse the default, or to constitute a defense in the underlying foreclosure proceeding. Defendants may or may not have meritorious causes of action against UMF and/or KOW, however, such claims were insufficient as a defense in the underlying foreclosure action, and consequently, Abrams Fensterman has an absolute defense founded upon documentary evidence in the instant legal malpractice action. Conclusion For the foregoing reasons, the First Amended Verified Complaint is barred by a defenses founded upon documentary evidence, and failure to state a cause of action for legal malpractice, and is hereby dismissed pursuant to CPLR 3211 [a][1] and [7]. Decretal Paragraphs It is hereby ORDERED that Defendant’s motion to dismiss Plaintiff’s First Amended Verified Complaint is GRANTED, and it is further, ORDERED, that the clerk of the court shall enter judgment accordingly. Any relief requested and not specifically addressed herein is denied as moot. Dated: December 20, 2022
