In Zeppieri v Vinson, 190 AD3d 1173 [3d Dept 2021], the court affirmed the dismissal of a legal malpractice action where the lower court relied on an order as documentary evidence. The court held:
Plaintiff Thomas J. Zeppieri is the Chief Executive Officer of plaintiff Adirondack Entertainment and Recreation, Inc. Defendant Jessica Hugabone Vinson is an attorney employed by defendant Barlett, Pontiff, Stewart & Rhodes, P.C. Plaintiffs retained defendants to represent them against Adirondack Lakeview, LLC and The Fort Henry Corp. (hereinafter collectively referred to as Adirondack Lakeview) in a property boundary dispute (hereinafter the underlying action). In the underlying action, Adirondack Lakeview alleged causes of action contending encroachment and trespass. Defendants, on plaintiffs’ behalf, answered and asserted counterclaims for adverse possession and a prescriptive easement. Following a trial in the underlying action, Supreme Court (Muller, J.), by order dated July 3, 2018, found plaintiffs liable for encroachment and trespass and dismissed plaintiffs’ counterclaims as meritless.
Thereafter, plaintiffs commenced this action for legal malpractice. The primary contention in the amended complaint was that Vinson failed to object to inadmissible hearsay testimony by Robert F. Flacke, Adirondack Lakeview’s president, and that such testimony destroyed their counterclaims for adverse possession and easement by prescription. Defendants moved, pre-answer, to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7) and 3013, arguing, among other things, that plaintiffs’ claims were vague, conclusory and otherwise refuted by documentary evidence. Supreme Court (McGrath, J.) found that the July 2018 order constituted documentary evidence that directly refuted plaintiffs’ primary allegation of malpractice and that the remaining allegations were conclusory. As such, Supreme Court granted defendants’ motion to dismiss the amended complaint. Plaintiffs appeal arguing that Supreme Court erred in relying on impermissible documentary evidence.
To recover damages for legal malpractice, “a plaintiff must demonstrate 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. 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 lawyer’s negligence” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 [2007] [internal quotation marks and citations omitted]; see Mid–Hudson Val. Fed. Credit Union v. Quartararo & Lois, PLLC, 155 A.D.3d 1218, 1219–1220, 64 N.Y.S.3d 389 [2017], affd 31 N.Y.3d 1090, 78 N.Y.S.3d 703, 103 N.E.3d 774 [2018] ). When determining whether a complaint fails to state a cause of action, “the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide the plaintiff the benefit of every possible inference” (MLB Constr. Servs., LLC v. Lake Ave. Plaza, LLC, 156 A.D.3d 983, 984, 66 N.Y.S.3d 568 [2017] [internal quotation marks, brackets and citations omitted]; see Sim v. Farley Equip. Co. LLC, 138 A.D.3d 1228, 1228, 30 N.Y.S.3d 736 [2016] ). “However, allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration” (Myers v. Schneiderman, 30 N.Y.3d 1, 11, 62 N.Y.S.3d 838, 85 N.E.3d 57 [2017] [internal quotation marks and citations omitted]; see Wisdom v. Reoco, LLC, 162 A.D.3d 1380, 1381, 79 N.Y.S.3d 717 [2018] ).
“A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint as barred by documentary evidence may be properly granted only if the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law. To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity” (Koziatek v. SJB Dev. Inc., 172 A.D.3d 1486, 1486, 99 N.Y.S.3d 480 [2019] [internal quotation marks and citations omitted] ). “[I]t is clear that judicial records, as well as … any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Jenkins v. Jenkins, 145 A.D.3d 1231, 1234, 44 N.Y.S.3d 223 [2016] [internal quotation marks and citations omitted]; see Magee–Boyle v. Reliastar Life Ins. Co. of N.Y., 173 A.D.3d 1157, 1159, 105 N.Y.S.3d 90 [2019] [internal quotation marks, brackets and citation omitted] ).
In support of their motion, defendants submitted the July 2018 order, the transcript of the bench trial and an email that had been accepted into evidence. The July 2018 order clearly qualifies as documentary evidence. As Supreme Court observed, the July 2018 order “refutes plaintiffs’ primary contention that defendants’ failure to object to Flacke’s testimony was the proximate cause of plaintiffs’ damages.” Where Supreme Court specifically states that its order is based on the decision from the underlying action, we find ourselves with “the proper case” in which a judicial record qualifies as appropriate documentary evidence sufficient to defeat the action (Jenkins v. Jenkins, 145 A.D.3d at 1234, 44 N.Y.S.3d 223). Moreover, even if the court also relied on the underlying transcript, contrary to plaintiff’s contention, there is no per se prohibition on said reliance, where, as here, the contents of the transcript are undeniable (see Tyree v. Castrovinci, 164 A.D.3d 1399, 1400, 81 N.Y.S.3d 741 [2018] ). We agree that Supreme Court properly granted defendants’ motion to dismiss the amended complaint based upon documentary evidence (see Ganje v. Yusuf, 133 A.D.3d 954, 957, 19 N.Y.S.3d 355 [2015]; Doller v. Prescott, 167 A.D.3d 1298, 1300, 91 N.Y.S.3d 533 [2018] ). Given our finding, the remainder of plaintiffs’ arguments are academic.
R. A. Klass
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