Motion to Dismiss

…client’s allegations were previously addressed in a prior matter.

Posted on by

In Knox v Aronson, Mayefsky & Sloan, LLP, 2018 NY Slip Op 09030 [1st Dept Dec. 27, 2018], the court dismissed a legal malpractice case where the client’s allegations were previously addressed in a prior matter.  The court held:

Supreme Court properly dismissed plaintiff’s complaint as against FBK, since the only claim asserted, a legal malpractice claim, is barred by the doctrine of res judicata (see Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 [2005] ).  Plaintiff’s legal malpractice claim is based on the same conduct that was the basis of the counterclaim previously dismissed by Supreme Court Westchester County.  Res judicata bars all claims “ arising out of the same transaction or series of transactions … even if based upon different theories or if seeking a different remedy ” (Jumax Assoc. v. 350 Cabrini Owners Corp., 110 A.D.3d 622, 623, 973 N.Y.S.2d 631 [1st Dept. 2013] [internal quotation marks omitted], lv denied 23 N.Y.3d 907, 2014 WL 2922240 [2014]).  Contrary to plaintiff’s contention, the dismissal in the Westchester action was on the merits.  The order addressed the merits of the counterclaim, dismissing it on the basis of the settlement and the custody decision in the matrimonial action (see Plaza PH2001 LLC v. Plaza Residential Owner LP, 98 A.D.3d 89, 98, 947 N.Y.S.2d 498 [1st Dept. 2012] ).

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Client alleged attorney failed to provide legal advice … immigration consequences

Posted on by

The First Department kept a legal malpractice case alive and partially denied the attorney’s motion to dismiss action, where the client alleged that the attorney failed to provide legal advice. In Sehgal v DiRaimondo, 165 AD3d 435, 436-37 [1st Dept 2018], the court held:

We affirm dismissal of part of the malpractice claim on alternative grounds. Plaintiff’s claim that he pleaded guilty to criminal charges in reliance on defendants’ negligent legal advice concerning the immigration consequences of the plea is barred by his guilty plea and lack of any claim of innocence (Carmel v. Lunney, 70 N.Y.2d 169, 173, 518 N.Y.S.2d 605, 511 N.E.2d 1126 [1987]; Yong Wong Park v. Wolff & Samson, P.C., 56 A.D.3d 351, 867 N.Y.S.2d 424 [1st Dept. 2008], lv denied 12 N.Y.3d 704, 876 N.Y.S.2d 705, 904 N.E.2d 842 [2009] ). However, the policy underlying the rule established in Carmel v. Lunney, supra, does not require dismissal of the entirety of plaintiff’s legal malpractice claim, because the remainder of his claim that defendants failed to advise him of the potential immigration consequences of traveling outside the United States as a result of entering a guilty plea does not dispute the validity of his conviction (see generally Carmel v. Lunney, supra; see also Bass & Ullman v. Chanes, 185 A.D.2d 750, 586 N.Y.S.2d 610 [1st Dept. 1992] ). Further, plaintiff’s allegations that he relied on defendants’ faulty legal advice concerning the immigration consequences of his guilty plea in deciding to travel abroad after he pled guilty, resulting in his being detained and subjected to removal proceedings, state a valid cause of action for legal malpractice. Defendants’ other arguments present disputed factual issues concerning the standard of care and proximate cause that are not properly resolved on a motion to dismiss the complaint (see Urias v. Daniel P. Buttafuoco & Assoc., PLLC, 120 A.D.3d 1339, 1343, 992 N.Y.S.2d 552 [2d Dept. 2014] ).

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Second Department reiterated general rule on a pre-answer motion to dismiss that letters and emails are generally not considered documentary evidence within the meaning of CPLR 3211(a)(1)

Posted on by

The Second Department reiterated the general rule on a pre-answer motion to dismiss that letters and emails are generally not considered documentary evidence within the meaning of CPLR 3211(a)(1). In First Choice Plumbing Corp. v Miller Law Offices, PLLC, 164 AD3d 756 [2d Dept 2018], the court held:

The plaintiffs First Choice Plumbing Corp. (hereinafter First Choice) and Malacy Plumbing Supply, Inc. (hereinafter Malacy), commenced this action to recover damages for legal malpractice against the defendant Miller Law Offices, PLLC, for its alleged negligence concerning two mechanic’s liens. The complaint alleges that the plaintiffs failed to receive full payment for plumbing services and supplies they provided on a construction project, and that the plaintiffs each filed a mechanic’s lien to recover the monies owed. The complaint further alleges that the liens were extended once, but subsequently lapsed and were extinguished by operation of law, due to the defendant’s negligence.

The defendant made a pre-answer motion to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), and (7). The defendant argued, among other things, that no attorney-client relationship existed with respect to the mechanic’s liens. In support of that contention, the defendant submitted copies of the lien extensions, which were filed by nonparty Speedy Lien; a copy of a contract between First Choice and nonparty Construction Lien Consultants, LLC, to investigate, recover, and/or settle the debts owed to First Choice, as reflected in one of the mechanic’s liens; and emails and a letter. In the order appealed from, the Supreme Court found *173 that the defendant submitted documentary evidence which utterly refuted the plaintiffs’ allegation that there was an attorney-client relationship between them and the defendant with respect to the liens and their extensions. Accordingly, the court granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that no attorney-client relationship existed, and denied, in effect, as academic, the remaining branches of the defendant’s motion. The plaintiffs appeal.

A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511). “In order for evidence to qualify as ‘documentary,’ it must be unambiguous, authentic, and undeniable” (Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 996–997, 913 N.Y.S.2d 668; see Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569). “[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 A.D.3d at 84–85, 898 N.Y.S.2d 569 [internal quotation marks omitted] ). “Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence” (25–01 Newkirk Ave., LLC v. Everest Natl. Ins. Co., 127 A.D.3d 850, 851, 7 N.Y.S.3d 325; see Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807, 60 N.Y.S.3d 67; Prott v. Lewin & Baglio, LLP, 150 A.D.3d 908, 909, 55 N.Y.S.3d 98; Gawrych v. Astoria Fed. Sav. & Loan, 148 A.D.3d 681, 682, 48 N.Y.S.3d 450).

Here, the emails and letters submitted in support of the defendant’s motion were not documentary evidence within the meaning of CPLR 3211(a)(1). To the extent that the other evidence submitted was documentary, that evidence did not conclusively establish the absence of an attorney-client relationship between the plaintiffs and the defendant with respect to the liens and their extensions. Thus, the Supreme Court should not have granted that branch of the defendant’s motion which was to dismiss the complaint on this ground.

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

…plaintiff could not establish liability because he could not prove the underlying action.

Posted on by

In Blair v Loduca, 164 AD3d 637, 638-40 [2d Dept 2018], the Second Department considered the argument made by the defendant-attorney sued for legal malpractice that the plaintiff could not establish liability because he could not prove the underlying action.

“ To establish the required element of causation in a legal malpractice action, ‘ a plaintiff must show that he or she would have prevailed in the underlying action … but for the lawyer’s negligence ’ ” (Balan v. Rooney, 152 A.D.3d 733, 733, 61 N.Y.S.3d 29, quoting Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; see Detoni v. McMinkens, 147 A.D.3d 1018, 48 N.Y.S.3d 208). The only issue raised in the defendants’ motion for summary judgment was whether the plaintiff could have prevailed in the underlying action against the property owner.

In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly *639 dangerous or defective condition nor had actual or constructive notice of its existence (see Martino v. Patmar Props., Inc., 123 A.D.3d 890, 890, 999 N.Y.S.2d 449; Kruger v. Donzelli Realty Corp., 111 A.D.3d 897, 975 N.Y.S.2d 689; Smith v. Christ’s First Presbyt. Church of Hempstead, 93 A.D.3d 839, 941 N.Y.S.2d 211; Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 925 N.Y.S.2d 607). “ Under the so-called ‘ storm in progress ’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm ” (Marchese v. Skenderi, 51 A.D.3d 642, 642, 856 N.Y.S.2d 680; see Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 810 N.Y.S.2d 121, 843 N.E.2d 748; Dumela–Felix v. FGP W. St., LLC, 135 A.D.3d 809, 810, 22 N.Y.S.3d 896; McCurdy v. Kyma Holdings, LLC, 109 A.D.3d 799, 799, 971 N.Y.S.2d 137; Smith v. Christ’s First Presbyt. Church of Hempstead, 93 A.D.3d 839, 840, 941 N.Y.S.2d 211; Weller v. Paul, 91 A.D.3d 945, 947, 938 N.Y.S.2d 152; Mazzella v. City of New York, 72 A.D.3d 755, 756, 899 N.Y.S.2d 291). If a storm is ongoing, and a property owner elects to remove snow, the owner must do so with reasonable care or it could be held liable for creating a hazardous condition or exacerbating a natural hazard created by the storm (see Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d 1177, 944 N.Y.S.2d 640; Petrocelli v. Marrelli Dev. Corp., 31 A.D.3d 623, 817 N.Y.S.2d 913; Salvanti v. Sunset Indus. Park Assoc., 27 A.D.3d 546, 813 N.Y.S.2d 110; Chaudhry v. East Buffet & Rest., 24 A.D.3d 493, 808 N.Y.S.2d 239). In such an instance, that property owner, if moving for summary judgment in a slip-and-fall case, must demonstrate in support of his or her motion that the snow removal efforts he or she undertook neither created nor exacerbated the allegedly hazardous condition which caused the injured plaintiff to fall (see Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d at 1177, 944 N.Y.S.2d 640).

In support of their motion for summary judgment dismissing the complaint in this action, the defendants submitted the plaintiff’s deposition testimony, the deposition testimony of the building’s doorman, the affidavit of a meteorologist, and certified climatological data. These submissions demonstrated that a storm was in progress at the time of the accident, that there was no preexisting ice on the ground when the storm commenced, and that the property owner did not create or exacerbate the allegedly dangerous condition created by the storm in progress (see Aronov v. St. Vincent’s Hous. Dev. Fund Co., Inc., 145 A.D.3d 648, 649, 43 N.Y.S.3d 99; **135 Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d at 1177, 944 N.Y.S.2d 640; Ali v. Village of Pleasantville, 95 A.D.3d 796, 797, 943 N.Y.S.2d 582). Since the defendants made a prima facie showing that the storm in progress rule applied *640 to the underlying action, the burden shifted to the plaintiff to show that something other than the precipitation from the storm in progress caused the accident (see Baker v. St. Christopher’s Inn, Inc., 138 A.D.3d 652, 653, 29 N.Y.S.3d 439; Burniston v. Ranric Enters. Corp., 134 A.D.3d 973, 974, 21 N.Y.S.3d 694; Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 877–878, 925 N.Y.S.2d 607; Alers v. La Bonne Vie Org., 54 A.D.3d 698, 699, 863 N.Y.S.2d 750). The plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint because the plaintiff could not have prevailed in the underlying action against the property owner (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Balan v. Rooney, 152 A.D.3d at 733, 61 N.Y.S.3d 29; Detoni v. McMinkens, 147 A.D.3d at 1018, 48 N.Y.S.3d 208).

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Plaintiff claimed attorney malpracticed with regard to a settlement

Posted on by

In Freeman v Brecher, 2017 NY Slip Op 07949 [1st Dept Nov. 14, 2017], the plaintiff claimed that the attorney malpracticed with regard to a settlement. In affirming the dismissal of the case, the appellate court held that,

“Plaintiff’s claim for legal malpractice in connection with an underlying settlement fails to state a cause of action in the absence of allegations that the “settlement … was effectively compelled by the mistakes of [defendant] counsel” (Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430, 554 N.Y.S.2d 487 [1st Dept.1990] ) or the result of fraud or coercion (see Beattie v. Brown & Wood, 243 A.D.2d 395, 663 N.Y.S.2d 199 [1st Dept.1997] ). Plaintiff’s equivocal denial of knowledge of the terms of the settlement is flatly contradicted by the clear terms of the settlement agreement (see Bishop v. Maurer, 33 A.D.3d 497, 499, 823 N.Y.S.2d 366 [1st Dept.2006], affd. 9 N.Y.3d 910, 844 N.Y.S.2d 165, 875 N.E.2d 883 [2007] ). Additionally, plaintiff’s speculative and conclusory allegations of proximately caused damages cannot serve as a basis for a legal malpractice claim (see Pellegrino v. File, 291 A.D.2d 60, 63, 738 N.Y.S.2d 320 [1st Dept.2002], lv. denied 98 N.Y.2d 606, 746 N.Y.S.2d 456, 774 N.E.2d 221 [2002] ). Plaintiff’s cause of action for breach of fiduciary duty arising from the same conduct was correctly dismissed as duplicative of the legal malpractice claim (see Garnett v. Fox, Horan & Camerini, LLP, 82 A.D.3d 435, 436, 918 N.Y.S.2d 79 [1st Dept.2011]; InKine Pharm. Co. v. Coleman, 305 A.D.2d 151, 152, 759 N.Y.S.2d 62 [1st Dept.2003] ).”