Brian P. Neary, P.C., Huntington, NY, for appellants.

Kaufman Dolowich Voluck, LLP, New York, NY (Anthony J. Proscia of counsel), for respondents.

In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated October 21, 2020. The order granted the defendants' motion pursuant to CPLR 3211 (a) to dismiss the amended complaint.

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was pursuant to CPLR 3211 (a) to dismiss the plaintiffs' cause of action alleging legal malpractice, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs payable to the plaintiffs.

The plaintiffs, Patricia Lam and Hao Lam, previously owned and resided in a home in Syosset. In 2014, the plaintiffs' first mortgage lender commenced a foreclosure action against them. In March 2017, the lender secured a judgment of foreclosure and sale against the plaintiffs.

On or about August 7, 2017, Hao Lam met with the defendant Ronald D. Weiss, an attorney and the principal of the defendant Ronald D. Weiss, P.C., a law firm, for the purpose of seeking legal advice to avoid losing the home. At the time of the meeting, the plaintiffs were allegedly unaware that a foreclosure auction was scheduled for September 5, 2017. Therefore, Hao Lam did not inform Weiss of the scheduled auction during their meeting, although he purportedly advised Weiss that the home was "under foreclosure." After obtaining some information about the plaintiffs' finances, Weiss allegedly recommended that Hao Lam pursue a mortgage modification agreement with the lender. Weiss also purportedly advised Hao Lam that he and his wife were[*2]"excellent candidates for Chapter 13 bankruptcy[,] which would allow [them] to keep their home and retain the equity [therein]," and that his firm could represent them in such a proceeding if efforts to secure a mortgage modification agreement from the lender did not bear fruit. Based on this recommendation, Hao Lam agreed to retain Weiss's law firm for the purpose of pursuing a mortgage modification agreement, executing a retainer agreement several days later.

On August 31, 2017, Weiss sent the plaintiffs a solicitation letter concerning the upcoming foreclosure auction, the substance of which implied that it was a form document sent to prospective clients, even though the plaintiffs had already retained Weiss's firm. The letter, inter alia, stated that the plaintiffs had multiple options available to them to avoid losing the home, including filing a bankruptcy petition. Upon receipt of the letter on September 1, 2017, Hao Lam, allegedly believing that Weiss was in the midst of working to save his home from foreclosure, contacted Weiss's office and left a message. Receiving no response, he called again the next day and left another message. On September 5, 2017, the day of the auction, Hao Lam called a third time and eventually spoke to Weiss's paralegal, who, among other things, indicated that Weiss was not available to meet for a few days. On September 8, 2017, Hao Lam met with Weiss at his office, allegedly learning for the first time that his home had been sold at the foreclosure auction three days earlier. Weiss purportedly apologized for his "mistake." The plaintiffs were later forced to vacate their home.

In July 2019, the plaintiffs commenced this action against the defendants, asserting a cause of action alleging legal malpractice. They subsequently filed an amended complaint, inter alia, adding a cause of action alleging breach of contract. In August 2020, the defendants moved pursuant to CPLR 3211 (a) (1) and (7) to dismiss the amended complaint. The plaintiffs opposed the motion. By order dated October 21, 2020, the Supreme Court granted the defendants' motion, and the plaintiffs appeal.

"In considering a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Langley v Melville Fire Dist., 213 AD3d 748, 750 [2023]). However, "allegations consisting of bare legal conclusions . . . are not entitled to any such consideration" (Izmirligil v Steven J. Baum, P.C., 180 AD3d 767, 770 [2020] [internal quotation marks omitted]). Similarly, "[t]he allegations of [a] pleading cannot be vague and conclusory, but must contain sufficiently particularized allegations from which a cognizable cause of action reasonably could be found" (Monaghan v Roman Catholic Diocese of Rockville Ctr., 165 AD3d 650, 652 [2018] [internal quotation marks omitted]). "Although inartfully pleaded, a claim should not be dismissed when the facts stated are sufficient to make out a cause of action" (Houtenbos v Fordune Assn., Inc., 200 AD3d 662, 664 [2021]). "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" (Redwood Prop. Holdings, LLC v Christopher, 211 AD3d 758, 759 [2022] [internal quotation marks omitted]).

"A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law" (Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d 714, 715 [2022]). "In order for evidence to [*3]qualify as documentary, it must be unambiguous, authentic, and undeniable" (Bianco v Law Offs. of Yuri Prakhin, 189 AD3d 1326, 1328 [2020]).

"To state a cause of action to recover damages for legal malpractice, [a] plaintiff [must] allege 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" (Jean-Paul v Rosenblatt, 208 AD3d 652, 653 [2022] [internal quotation marks omitted]). However, "a plaintiff is not obligated to show, on a motion to dismiss, that it actually sustained damages," so long as damages flowing from the alleged negligence may be "reasonably inferred" (Randazzo v Nelson, 128 AD3d 935, 937 [2015] [alterations and internal quotation marks omitted]). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney's negligence" (Mackey Reed Elec., Inc. v Morrone & Assoc., P.C., 125 AD3d 822, 823 [2015]). "Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative" (Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d 646, 649 [2023] [internal quotation marks omitted]; see Mackey Reed Elec., Inc. v Morrone & Assoc., P.C., 125 AD3d at 823).

Here, the Supreme Court erred in concluding that the plaintiffs failed to set forth facts demonstrating that the defendants breached any duty owed to them. The plaintiffs' allegations, inter alia, that Weiss failed to ascertain the status of the foreclosure action before recommending a strategy, and that his proposed strategy of focusing on the pursuit of a mortgage modification was "futile" in light of the then upcoming foreclosure auction, were sufficient, if true, for a factfinder to determine that Weiss offered negligent advice (see Esposito v Noto, 132 AD3d 944, 945-946 [2015]; Coccia v Liotti, 70 AD3d 747, 753 [2010]; Terio v Spodek, 25 AD3d 781, 782-785 [2006]). Moreover, the court improperly determined that the defendants could not be held liable pursuant to the attorney judgment rule, i.e., that Weiss's mortgage modification focused strategy, as merely the "selection of one among several reasonable courses of action[,] does not constitute malpractice" (Silverman v Eccleston Law, LLC, 208 AD3d 705, 707 [2022] [internal quotation marks omitted]). The defendants improperly raised this issue for the first time in their reply affirmation, and there is no indication that the plaintiffs were afforded the opportunity to submit a surreply affirmation (see Ayers v Bloomberg, L.P., 203 AD3d 872, 875 [2022]). In any event, the defendants failed to "offer a reasonable strategic explanation" for recommending pursuit of a mortgage modification agreement less than one month before the scheduled foreclosure auction as the means of avoiding loss of the plaintiffs' home, as would have been required to establish a defense based upon the attorney judgment rule (Ackerman v Kesselman, 100 AD3d 577, 579 [2012] [internal quotation marks omitted]). Nor did the terms of the retainer agreement utterly refute the factual allegations of the amended complaint and conclusively establish a defense to the allegations of liability as a matter of law to warrant dismissal pursuant to CPLR 3211 (a) (1) (see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 715). The fact that the defendants' scope of representation as defined in the retainer agreement was limited to the pursuit of a mortgage modification agreement did not, inter alia, absolve them from potential liability for allegedly offering negligent advice during the initial meeting with Hao Lam.

In addition, the plaintiffs adequately alleged actual and ascertainable damages in the form of the lost equity in their home and attorney fees incurred in seeking to recover a portion of the surplus funds in the foreclosure action (see Gobindram v Ruskin Moscou Faltischek, P.C., 175 AD3d 586, 590-591 [2019]; Mizuno v Barak, 113 AD3d 825, 826 [2d Dept 2014], citing Mizuno v Fischoff & Assoc., 82 AD3d [*4]849, 850 [2011]; cf. Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1506 [2020]). Contrary to the defendants' contention, the terms of a so-ordered stipulation executed in the foreclosure action between the plaintiffs and a second mortgage lender did not utterly refute the factual allegations of the amended complaint and conclusively establish a defense to the allegations of damages as a matter of law (see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 715).

Moreover, regardless of whether the plaintiffs adequately alleged, in effect, that they would not have incurred the claimed damages but for the defendants' negligence because they would have succeeded in saving their home through a Chapter 13 bankruptcy proceeding, the Supreme Court improperly concluded that they failed to do so, considering that the defendants failed to make such an argument. The court's sua sponte determination deprived the plaintiffs of notice and an opportunity to be heard on the issue (see Wells Fargo Bank v Aucapina, 193 AD3d 1106, 1108 [2021]; Patel v Sharma, 168 AD3d 966, 967 [2019]; Matter of Meighan v Ponte, 144 AD3d 917, 918 [2016]; Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 54-55 [2014]).

However, the Supreme Court properly dismissed the plaintiffs' cause of action alleging breach of contract. Contrary to the plaintiffs' contention, that cause of action was duplicative of their legal malpractice cause of action and therefore subject to dismissal (see Joseph v Fensterman, 204 AD3d 766, 771 [2022]; Tulino v Hiller, P.C., 202 AD3d 1132, 1136 [2022]; Attallah v Milbank, Tweed, Hadley & McCloy, LLP, 168 AD3d 1026, 1029 [2019]). Brathwaite Nelson, J.P., Genovesi, Warhit and Voutsinas, JJ., concur.