CONCLUSORY AND SPECULATIVE ALLEGATIONS PLAINTIFF WOULD NOT HAVE LOST ITS DISADVANTAGED BUSINESS ENTERPRISE (DBE) STATUS HAD DEFENDANT ATTORNEYS NOT FAILED TO FILE AN ADMINSTRATIVE APPEAL AND REQUEST A HEARING WERE NOT SUFFICIENT TO SURVIVE A MOTION TO DISMISS PURSUANT TO CPLR 3211 (A) (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined the legal malpractice complaint should have been dismissed. Defendants allegedly did not pursue an administrative appeal and submitted a written response in lieu of a hearing. Plaintiff Mid City alleged the failures resulted in the termination of its status as a disadvantaged business enterprise (DBE). The Second Department held plaintiff did not demonstrate that but for the alleged legal malpractice the DBE status would not have been terminated:
… [E]ven accepting the facts alleged in the complaint as true, and according Mid City the benefit of every possible favorable inference … , the complaint failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome regarding the termination of Mid City’s status as a DBE … . The allegation that Mid City lost the opportunity to pursue an administrative appeal, without any indication that the appeal would be successful, is insufficient to state a claim … . Similarly, the allegation that Mid City would have been recertified as a DBE had the defendants requested a hearing, rather than having filed a written response to the initial letter proposing termination of its status as a DBE, is speculative and conclusory … . Mid City Elec. Corp. v Peckar & Abramson, 2023 NY Slip Op 01085, Second Dept 3-1-23
Practice Point: To survive a motion to dismiss the complaint in a legal malpractice action, the plaintiff must make specific factual allegations demonstrating that but for the attorney’s negligence the outcome would have been more favorable. Conclusory or speculative “but for” allegations are not enough.