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Objecting Distributee And Interested Person In A Probate Proceeding

Order, Surrogate's Court, New York County (Renee R. Roth, S.), entered on or about May 28, 2002, which granted petitioner attorney's application for legal fees and disbursements against appellant and granted petitioner's motion to dismiss appellant's counterclaims against petitioner, affirmed, without costs.

Petitioner's representation of appellant as an objecting distributee and interested person in a probate proceeding (258 AD2d 379 [1999], lv denied 93 NY2d 810 [1999], cert denied 528 US 1066 [1999]) gave the Surrogate jurisdiction to hear petitioner's application for legal fees (SCPA 2110 [1]), to award attorneys' fees against appellant personally (see Matter of Levine, 262 AD2d 80 [1999]), and to determine appellant's counterclaims for legal malpractice and breach of contract arising out of petitioner's representation of appellant in the probate proceeding (NY Const, art VI, § 12 [d]; see Matter of Tarka, 293 AD2d 396 [2002], lv denied 99 NY2d 530 [2002]; see generally Matter of Piccione, 57 NY2d 278, 287-289 [1982]). The record does not reveal bias on the part of the Surrogate; thus recusal was properly denied (see People v Moreno, 70 NY2d 403, 405-406 [1987]; Tarka, supra).

With regard to that branch of petitioner's motion which sought dismissal of appellant's legal malpractice counterclaims, it is well settled that in considering a motion to dismiss brought pursuant to CPLR 3211 (a) (7), the court must presume the facts pleaded to be true and must accord them every favorable inference (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]; Delran v Prada USA Corp., 23 AD3d 308 [2005]). It is, however, also axiomatic that factual allegations which fail to state a viable cause of action, that consist of bare legal conclusions, or that are inherently incredible or unequivocally contradicted by documentary evidence, are not entitled to such consideration (Skillgames, LLC v Brody, 1 AD3d 247, 250 [2003]; Caniglia v Chicago Tribune-N.Y. News Syndicate, 204 AD2d 233, 233-234 [1994]). [*2]

In order to state a cause of action for legal malpractice, the complaint must set forth three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages (Reibman v Senie, 302 AD2d 290 [2003]; Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193, 198 [2003]). In order to establish proximate cause, plaintiff must demonstrate that "but for" the attorney's negligence, plaintiff would either have prevailed in the matter at issue, or would not have sustained any "ascertainable damages" (Brooks v Lewin, 21 AD3d 731, 734 [2005]; Reibman v Senie, 302 AD2d at 290-291). The failure to demonstrate proximate cause mandates the dismissal of a legal malpractice action regardless of whether the attorney was negligent (Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d at 198; Pellegrino v File, 291 AD2d 60, 63 [2002], lv denied 98 NY2d 606 [2002]).

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