A motion to dismiss based upon documentary evidence should be conclusive.

The decision in Bianco v Law Offices of Yuri Prakhin, 189 AD3d 1326, 1327-29 [2d Dept 2020] serves as a good reminder that a motion to dismiss an action based upon documentary evidence should be conclusive; otherwise, the motion will be denied:

On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see CPLR 3026). The facts as alleged in the complaint are accepted as true, the plaintiff is afforded the benefit of every possible favorable inference, and the court determines only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Under CPLR 3211 (a) (1), a *1328 dismissal is warranted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d at 88). In order for evidence to qualify as documentary, it must be unambiguous, authentic, and undeniable (see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [2010]; Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]). “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Fontanetta v John Doe 1, 73 AD3d at 84-85 [internal quotation marks omitted]; see First Choice Plumbing Corp. v Miller Law Offs., PLLC, 164 AD3d 756, 758 [2018]). Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211 (a) (1) (see Fox Paine & Co., LLC v Houston Cas. Co., 153 AD3d 673, 678 [2017]; Granada Condominium III Assn. v Palomino, 78 AD3d at 997). Accordingly, the hearing transcripts, affirmation, and affidavit relied upon by the Kletzkin defendants and the Schneider defendants in support of their respective motions do not constitute documentary evidence for the purposes of CPLR 3211 (a) (1). Additionally, the trial counsel agreement between the Schneider defendants and the Kletzkin defendants, which does constitute documentary evidence, did not utterly refute the factual allegations of the complaint and did not conclusively establish a defense to the claims as a matter of law.

On a motion made pursuant to CPLR 3211 (a) (7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party (see Sokol v Leader, 74 AD3d 1180, 1181 [2010]). “Unless the motion is converted into one for summary judgment pursuant to CPLR 3211 (c), ‘affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint,’ and such affidavits ‘are not to be examined for the purpose of determining whether there is evidentiary support for the pleading’ ” (Sokol v Leader, 74 AD3d at 1181, quoting Rovello v Orofino Realty Co., 40 NY2d 633, 635, 636 [1976]; see Nonnon v City of New York, 9 NY3d 825, 827 [2007]). Affidavits submitted by a defendant “will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no . . . cause of action” (Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008] [emphasis and internal quotation marks omitted]; see Sokol v Leader, 74 AD3d at 1182). “[U]nless it has been shown that a *1329 material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Carlson v American Intl. Group, Inc., 30 NY3d 288, 298 [2017]; AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]).

Here, the plaintiff adequately pleaded the cause of action alleging legal malpractice against the Kletzkin defendants and the Schneider defendants. Contrary to the contentions of those defendants, neither conclusively established that an application for leave to serve a late notice of **3 claim or to deem the late notice of claim timely served upon the NYCTA nunc pro tunc would have been futile (see generally Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 465 [2016]; Davis v Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, 284 AD2d 104, 105 [2001]).

Contrary to the Kletzkin defendants’ contention, the complaint adequately states a cause of action to recover damages for violation of Judiciary Law § 487. Contrary to the Schneider defendants’ contention, the cause of action alleging violation of Judiciary Law § 487 is not duplicative of the cause of action alleging legal malpractice. “A violation of Judiciary Law § 487 requires an intent to deceive (see Judiciary Law § 487), whereas a legal malpractice claim is based on negligent conduct” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [2009]; see Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 [2018], affd 35 NY3d 173 [2020]).

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Scales of justice illustrating article about legal malpractice.

Rehabilitation Center: Arguing with a nursing home administrator is like wrestling with a pig in the mud: After a few minutes, you realize the pig likes it.

Woman with white hair and pink smock holding hands in front of face, illustrating article by Richard Klass about nursing homes and rehabilitation centers

She had to convalesce in a rehabilitation center for comprehensive (sub-acute) in-patient care following illness. Upon admission, the resident was presented with the facility’s admission agreement for her to sign. The agreement provided that, in exchange for payment through Medicaid, Medicare, insurance or direct pay, the facility would provide all of the patient’s basic and routine services, including lodging and boarding and professional nursing care.

The agreement specified that the resident anticipated paying the costs of care through her managed care organization (MCO) (which contracts through a network or group for the delivery of health care). However, the agreement left the section for private payment rates for daily charges blank.

Motion to Dismiss the Facility’s Case

Post-discharge, the rehabilitation facility brought an action against the former resident, alleging that she obligated herself to pay for the room, board, nursing and health care services but failed to made payment. To mount the best defense possible, the former resident retained Richard A. Klass, Esq., Your Court Street Lawyer, who immediately moved to dismiss the case.

In the Complaint, the facility alleged that it was a corporation duly organized and existing under and by virtue of the laws of the State of New York. Based upon a search of the New York State Department of State online records, there was no corporation with the plaintiff’s name registered to do business in New York State. Business Corporation Law § 301(a)(1) specifies that the name of a domestic or foreign corporation “shall contain the word ‘corporation’, ‘incorporated’ or ‘limited’, or an abbreviation of one of such words; or, in the case of a foreign corporation, it shall, for use in this state, add at the end of its name one of such words or an abbreviation thereof.” There was no such designation in its name in the Summons or Complaint. To the extent that the facility may have claimed it was suing under an assumed name, General Business Law § 130(1) provides that there are certain requirements to be met.

Consumer credit transaction

The pending motion to dismiss set up settlement discussions about the procedural and substantive defenses to the facility’s case. As to the procedural aspect, the next line of defense was to threaten dismissal of the lawsuit on jurisdictional grounds.

The Summons failed to prominently display at the top the words “Consumer Credit Transaction.” CPLR 305(a) specifies that the Summons must have those words on the top where the court held that the debt on an obligation of a consumer to pay money arising out of a transaction in which the services which are the subject of the transaction are primarily for personal, family or household purposes. In Jack Mailman & Leonard Flug DDS, PC v. Whaley, 2002 WL 31988623 [Civil Court, Richmond Co. 2002], the court held that medical debts were deemed consumer debts.

Residential Care Facilities – Residents’ Rights

Nursing facilities, including nursing homes and rehabilitation centers

Nursing facilities, including nursing homes and rehabilitation centers, that accept residents whose charges will be paid in whole or in part by Medicaid are governed by the federal Nursing Home Reform Act (42  USC §1396r) and federal and state regulations (42 CFR §483; and 10 NYCRR §415).

Through these enactments, there was the creation of a so-called residential care patient’s “Bill of Rights.” These “Rights” include the rights to freedom from abuse, mistreatment and neglect; privacy; accommodation for mental, physical, psychological and emotional needs; treatment with dignity; and being fully informed and participating in one’s care.[1]

Financial obligation rights

Among residents’ rights are those relating to financial obligations to the facility, including informing the resident of those services and items that the facility offers for which the resident may be charged. 10 NYCRR §415(h). These laws and regulations govern nursing facility admission agreements. See, Prospect Park Nursing Home v. Goutier, 824 NYS2d 770 [Civil Court, Kings Co. 2006].

The resident did not read or write in the English language. The admission agreement was not translated for her. The resident alleged that when she asked what she was signing, she was told that her MCO would be paying the costs, not her. The “Anticipated Payor” section indicated that an insurer would be paying. The “Private Payment” section (including costs per day) was left blank. The resident alleged that she was never informed of the rates or charges. It was claimed that the facility’s representatives engaged in wrongful conduct and misrepresentation concerning the execution of the agreement. See, Nerey v. Greenpoint Mortgage Funding, Inc., 144 AD3d 646 (2d Dept. 2016).

Rehabilitation Center

Quality of Life: The right to adequate and appropriate care

The regulations emphasize that a resident has the right to receive from the facility “the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, consistent with the resident’s comprehensive assessment and plan of care.” 42 CFR §483.24.

The resident alleged she received inadequate care at the facility, including that she had to wait many hours for the bedpan to be changed; lack of bathing; unavailability of staff when needed and for necessary help and activities. In light of the vigorous defense advocated by Your Court Street Lawyer, the facility agreed to significantly reduce the bill for rehabilitation services and settle the case with the former resident on very favorable terms.

[1] https://www.aarp.org/home-garden/livable-communities/info-2001/the_1987_nursing_home_reform_act.html

 

 

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Scales of justice illustrating article about legal malpractice.

Statute of limitations and doctrine of continuous representation.

In Keshner v Hein Waters & Klein, 185 AD3d 808, 808-09 [2d Dept 2020], the court considered whether, on a motion to dismiss, the client was able to prove that there was a toll on the statute of limitations for legal malpractice based upon continuous representation, holding:

The statute of limitations for a cause of action alleging legal malpractice is three years (see CPLR 214 [6]). “However, ‘[c]auses of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies’ ” (Farage v Ehrenberg, 124 AD3d 159, 164 [2014], quoting *809 Macaluso v Del Col, 95 AD3d 959, 960 [2012]; see Glamm v Allen, 57 NY2d 87, 94 [1982]). “[T]he rule of continuous representation tolls the running of the Statute of Limitations on the malpractice claim until the ongoing representation is completed” (Glamm v Allen, 57 NY2d at 94; see Farage v Ehrenberg, 124 AD3d at 164). “The two prerequisites for continuous representation tolling are a claim of misconduct concerning the manner in which professional services were performed, and the ongoing provision of professional services with respect to the contested matter or transaction” (Matter of Lawrence, 24 NY3d 320, 341 [2014]; see Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 9, 11 [2007]; McCoy v Feinman, 99 NY2d 295, 306 [2002]).

Here, the defendants met their initial burden of establishing, prima facie, that the legal malpractice cause of action was untimely (see CPLR 214 [6]). In opposition, however, the plaintiff raised a question of fact as to whether the statute of limitations was tolled by the doctrine of continuous representation (see Kitty Jie Yuan v 2368 W. 12th St., LLC, 119 AD3d 674, 674 [2014]; Macaluso v Del Col, 95 AD3d at 960; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017-1018 [2010]).

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Dude, Where’s My Lawyer?: attorney illness

Man sitting on a suitcase and looking through binoculars, illustrating an article about attorney illness by Richard Klass

She obtained a money judgment against a property owner for personal injuries she sustained. To collect the judgment, the injured plaintiff’s counsel retained Richard A. Klass, Your Court Street Lawyer as special collection counsel.

Proceeding to declare there’s no homestead exemption:

Once a judgment has been entered, there are various enforcement measures available to the creditor to collect the money due on the judgment from the debtor. One of the most effective means of enforcing a Judgment is through a Sheriff’s auction sale of a debtor’s real property.

Prior to the Sheriff conducting an auction sale of real estate, there is a requirement under CPLR 5206 that the judgment creditor file a proceeding to determine whether there is sufficient equity in the real property over and above both the liens and mortgages on the property and, if applicable, the debtor’s “homestead exemption” from which the judgment may be satisfied. The homestead exemption represents a certain monetary amount of equity in a debtor’s principal residence protected from creditors.1 If the court determines that there is sufficient net equity, then an order may be entered authorizing the Sheriff to levy on the real property and conduct the auction sale.

Discovery on the issue of the homestead exemption:

In the proceeding to determine that the debtor’s house could be sold at Sheriff’s auction, the debtor claimed that the subject house was his principal residence. In response, the creditor was granted leave of court to conduct discovery proceedings on the issue of the debtor’s homestead exemption claim. Discovery demands, including interrogatories and document demands, were served upon the debtor’s attorney.

Despite having been served with the discovery demands, the debtor failed to respond to them. The debtor’s failure to respond to the interrogatories and produce documents continued even after the direction of the court in the preliminary conference order and a subsequent order. The creditor filed a motion to strike the debtor’s answer and preclude him from asserting the homestead exemption claim. Once again, the debtor failed to respond or comply. The court gave the debtor one last chance to respond. Needless to say, the debtor did not respond despite all of the chances afforded to him, and the court struck his answer and his defenses, including the claimed homestead exemption.

Debtor claims default was due to his attorney’s illnesses:

The debtor’s new attorney filed a motion with the court requesting that the order striking his answer be vacated because his prior attorney was suffering from physical and mental illnesses. The prior attorney submitted an affirmation stating that he was diagnosed with idiopathic pulmonary fibrosis and was also suffering from mental illness, and that he has had to withdraw his representation in other cases.

In opposing the request to vacate the debtor’s default, the creditor argued (a) that the prior attorney failed to provide proof of mental illness; (b) from reviewing court calendars, there was no proof that the prior attorney withdrew from other cases; (c) the debtor failed to respond to discovery demands long before the default; and (d) the debtor still failed to sustain his burden of proving his claimed homestead exemption.

An attorney’s illness must be corroborated by medical documentation:

The judge laid out the criteria necessary to determine the debtor’s motion to vacate his default based upon the claim of his attorney’s illness, stating as follows:

“The illness of a party’s attorney, when corroborated by medical documentation, including the affirmation of a physician, suffices as a reasonable excuse for vacatur of a default. (Pierot v. Leonard, 154 AD3d 791 [2d Dept. 2017]; Weitzenberg v. Nassau County Dept. of Recreation & Parks, 29 AD3d 683 [2d Dept. 2006]; Norowitz v. Ponconco, Inc., 96 AD2d 581 [2d Dept. 1983]. [The attorney’s] alleged physical and mental health issues are not established by a doctor’s affirmation and therefore do not serve as a reasonable excuse to vacate the default. Nonetheless, [the attorney’s] initial default occurred prior to the alleged June 20th date of diagnosis, and [the attorney] fails to submit detailed submissions explaining the respondent’s delays in responding to the petitioner’s discovery demands, in complying with the court’s February 27th order mandating discovery, as well as his failure to oppose the petitioner’s April 16th motion to strike (compare with Hageman v. Home Depot U.S.A., Inc., 25 AD3d 760 [2d Dept. 2006].

Finally, the Court notes that respondent’s Answer was stricken and judgment entered after a history of noncompliance with orders to produce discovery essential to this litigation. . . . The Court finds that given the history of this litigation, the explanation proferred by respondent and his former counsel is vague, unsubstantiated and incredible, and does not constitute a reasonable excuse for respondent’s default (see Herrera v. MTA Bus Co., 100 AD3d 962 [2d Dept. 2012]); Wells Fargo Bank, NA v. Cervini, 84 AD3d 789 [2d Dept. 2011]. Given the Court of Appeals’ guidance in Gibbs v. St. Barnabas Hospital, 16 NY3d 74 [2010], as well as Second Department case law cited above, the Court finds it would be an improvident use of its discretion to vacate the default judgment in light of respondent’s history of default and noncompliance. Further, prior counsel’s alleged illness, which constituted the excuse for the default, only accounted for a small period of time in which respondent was to have provided discovery.”

The judge found that the petition was entitled to judgment as a matter of law and granted the petition directing the sale of the debtor’s 100% interest in the real property.

Footnotes:
1 Currently, a judgment debtor’s “homestead exemption” amount depends on which county the property is located, which is as follows:

  • $170,825 if the property is in the counties of Kings, Queens, New York, Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester, or Putnam.
  • $142,350 if the property is in the counties of Dutchess, Albany, Columbia, Orange, Saratoga or Ulster.
  • $85,400 if the property is in any other county.

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Plaintiffs’ Judiciary Law Section 487 cause of action was properly dismissed.

In dismissing the plaintiff’s claim against an attorney for violating Judiciary Law Section 487, the New York State Court of Appeals held:

Here, viewing the facts in the light most favorable to plaintiffs (see De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]), defendants established prima facie entitlement to judgment as a matter of law on the Judiciary Law Section 487 (1) claim by demonstrating that plaintiffs failed to allege that defendants engaged in deceit or collusion during the course of the underlying federal intellectual property lawsuit against GM and EMI [FN2]. In response, plaintiffs failed to satisfy their burden to establish material, triable issues of fact (id.). The affidavits plaintiffs submitted in opposition to summary judgment did not allege that defendants committed any acts of deceit or collusion during the pendency of the underlying federal lawsuit. To the extent defendants were alleged to have made deceitful statements, plaintiffs’ allegation that defendants induced them to file a meritless lawsuit based on misleading legal advice preceding commencement of the lawsuit is not meaningfully distinguishable from the conduct we deemed insufficient to state a viable attorney deceit claim in Looff (97 NY at 482). The statute does not encompass the filing of a pleading or brief containing nonmeritorious legal arguments, as such statements cannot support a claim under the statute [FN3]. Similarly, even assuming it constituted deceit or collusion, defendants’ alleged months-long delay in informing plaintiffs that their federal lawsuit had been dismissed occurred after the litigation had ended and therefore falls outside the scope of Judiciary Law Section 487 (1). Thus, plaintiffs’ Judiciary Law Section 487 cause of action was properly dismissed.

Bill Birds, Inc. v Stein Law Firm, P.C. 2020 NY Slip Op 02125 Decided on March 31, 2020 Court of Appeals DiFiore, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law Section 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 31, 2020
No. 19

[*1]Bill Birds, Inc. et al., Appellants,
v
Stein Law Firm, P.C. et al., Respondents.

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