Green v Seeman

[*1] Green v Seeman 2012 NY Slip Op 52141(U) Decided on November 20, 2012 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 20, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
570903/11.

Angela Green, Plaintiff-Appellant,

against

Fred L. Seeman and Law Office of Defendants-Respondents.

Plaintiff appeals from (1) an order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), entered February 9, 2011, which granted defendants' motion to dismiss the complaint for failure to state a cause of action and denied plaintiff's cross motion for leave to amend the complaint, and (2) an order (same court and Judge), entered September 23, 2011, which denied plaintiff's motion which was denominated as one for leave to renew and reargue the aforesaid order.

Per Curiam.

Order (Manuel J. Mendez, J.), entered February 9, 2011, affirmed, with $10 costs. Appeal from order (Manuel J. Mendez, J.), entered September 23, 2011, dismissed, without costs, as taken from a nonappealable order.

Even accepting the facts alleged in the complaint as true and affording plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we agree that plaintiff failed to make out a claim for legal malpractice. While plaintiff's malpractice claim appears to be premised on her assertions that defendants failed to properly interpose a breach of fiduciary duty defense in the underlying partition action or seek disclosure on the issue, plaintiff failed to allege facts tending to establish the existence of a fiduciary relationship between her and the plaintiff in the partition action. Thus, defendants' conduct was not a "but for" cause of the claimed losses (see Davis v Klein, 88 NY2d 1008 [1996]; Demo v Badie, 14 AD3d 436 [2005]). Nor was it an abuse of discretion to deny plaintiff's cross motion to amend the complaint, where the proposed amendments failed to cure the substantive defects of the complaint (see Kliebert v McKoan, 228 AD2d 232, 233 [1996]) and, to the extent the prolix amendments were based on the defendants' alleged malpractice in other legal proceedings, were untimely and prejudicial.

Plaintiffs' subsequent motion to renew and reargue raised no new facts and is therefore properly viewed as one solely for reargument, the denial of which is not appealable (see Belok v New York City Dept. of Hous. Preserv. & Dev., 89 AD3d 579 [2011]).

In light of our disposition of this appeal, we need not and do not address plaintiff's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 20, 2012