—Order, Supreme Court, New York County (Sheila AbdusSalaam, J.), entered September 21, 2000, which denied plaintiff’s motion to dismiss defendant’s counterclaim, unanimously reversed, on the law, without costs, the motion granted and the counterclaim dismissed. The Clerk is directed to enter judgment in favor of counterclaim defendant-appellant dismissing the counterclaim as against it.
Defendant and counterclaim plaintiff-respondent Cynthia Allen Mann was terminated from her employment at First Union National Bank on September 17, 1998. She retained plaintiff law firm to prosecute a claim for wrongful discharge, age and gender discrimination and harassment. The original retainer was on an hourly basis, but when the client became concerned with accumulating legal bills, she requested that the legal fee be changed to a partial contingency fee, to which the firm agreed. The fee arrangement, then, was that the firm was entitled to hourly billing, but agreed to be paid against the recovery in her lawsuit. The firm commenced the action and conducted preliminary investigative and legal services, including document collection and negotiation. As a result, Mann subsequently received a settlement offer in the amount of $1,035,000. Mann rejected the offer. The parties then proceeded to mediation, where the offer was made, and rejected, again. Mann subsequently discharged the firm, without paying it for its services, but filed a complaint with the Equal Employment Opportunity Commission and also tried negotiating with her former employer on her own.
The firm, concluding that Mann was engaging in a subterfuge
As we have often stated, in order to prevail in an action for legal malpractice, the plaintiff must plead factual allegations which, if proven at trial, would demonstrate that counsel had breached a duty owed to the client, that the breach was the proximate cause of the injuries, and that actual damages were sustained (Franklin v Winard, 199 AD2d 220). Unsupported factual allegations, conclusory legal argument or allegations contradicted by documentation, do not suffice (Franklin v Winard, supra). Attorneys may select among reasonable courses of action in prosecuting their clients’ cases without thereby committing malpractice (Rosner v Paley, 65 NY2d 736, 738), so that a purported malpractice claim that amounts only to a client’s criticism of counsel’s strategy may be dismissed. Moreover, the client must plead specific factual allegations establishing that but for counsel’s deficient representation, there would have been a more favorable outcome to the underlying matter (Franklin v Winard, supra). In the present case, Mann’s allegations fail to satisfy the threshold standard necessary to
Accordingly, we reverse to dismiss the counterclaim. Concur — Nardelli, J. P., Tom, Ellerin and Rubin, JJ.
