Legal Malpractice

How Bad Does the Complaint Have to Be to Get Dismissed in a Legal Malpractice Case

By (Andrew Lavoott Bluestone)

Thomas v Dinkes & Schwitzer, P.C. .2010 NY Slip Op 51666(U) ,Decided on September 23, 2010
Supreme Court, Kings County ,Rivera, J. tells us that a completely inchoherent complaint, while "filled with verbs, nouns, adverbs" etc, will be dismissed. 
 

"On June 16, 2009, plaintiff, proceeding pro se, filed a summons and complaint under index number 14881/09 with the Kings County Clerk's office. On February 22, 2010, plaintiff filed an amended complaint. On April 15, 2010, plaintiff filed a rewritten amended complaint, which is dated March 9, 2010. Plaintiff's amended complaint consists of seven pages and eleven paragraphs. Above every paragraph are headings which name various causes of action. The headings above the first, second, sixth, and seventh paragraphs state that the sentences below them are for causes of action in legal malpractice, and the headings [*2]above the third, fourth, fifth, eighth, ninth, tenth, and eleventh paragraphs state that the sentences below them are for causes of action for breach of fiduciary duties, vicarious liability, fraud, intentional infliction of emotional distress, breach of contract, unjust enrichment, and conspiracy, respectively. The sentences in these paragraphs are not consecutively numbered. The complaint, although it contains numerous words, phrases, and sentences, is completely devoid of any coherent allegations of fact.
 

 Defendant strains to read meaning into plaintiff's complaint, and addresses the requisite elements of causes of action for legal malpractice, breach of fiduciary duties, vicarious liability, fraud, intentional infliction of emotional distress, breach of contract, unjust enrichment, and conspiracy. However, since plaintiff has not satisfied the first requirement of pleading facts which give notice of the transactions or occurrences intended to be proved, there are no facts against which to apply the second requirement of whether the alleged facts state a cognizable cause of action (see CPLR 3013).

For example, "[a] cause of action to recover damages for legal malpractice requires proof of three elements: (1) that the defendant failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community, (2) that such negligence was the proximate cause of the actual damages sustained by the plaintiff, and (3) that, but for the defendant's negligence, the plaintiff would have been successful in the underlying action" (Simmons, 32 AD3d at 465; see also Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407, 409 [2007]; Edwards v Haas, Greenstein, Samson, Cohen & Gerstein, P.C.,17 AD3d 517, 519 [2005]; J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 14 AD3d 482, 483 [2005]). Since plaintiff has failed to satisfy the first hurdle of pleading factual allegations, he cannot meet the requirements of satisfying the above stated necessary showing to allege a sustainable cause of action for legal malpractice.

While, as discussed above, the court must liberally construe factual allegations and will not dismiss a complaint simply because of poor draftsmanship, here, the court cannot strain to give meaning to a pleading which completely fails to state any coherent or comprehensible factual allegations (see CPLR 3013). Thus, inasmuch as plaintiff's complaint does not state any cognizable claim in law or in equity, it must be dismissed pursuant to CPLR 3211 (a) (7) (see Heffez, 56 AD3d at 526; Simmons, 32 AD3d at 465).

Full post as published by New York Attorney Malpractice Blog on October 04, 2010 (boomark / email).