Court relied on an order as documentary evidence.

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.

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re Article 16 joint tortfeasors

In Lavelle-Tomko v Aswad & Ingraham, 191 AD3d 1142, 1148 [3d Dept 2021], the court dismissed the law firm’s affirmative defense re Article 16 joint tortfeasors, holding:

“plaintiff is entitled to dismissal of defendants’ third affirmative defense based on CPLR article 16, which does not apply to this action. The provisions of that article apply to joint tortfeasors sharing liability for noneconomic damages (see CPLR 1601, 1602); legal malpractice actions permit a plaintiff to recover only economic damages (see Kaiser v Van Houten, 12 AD3d 1012, 1014 [2004]; Risman v Leader, 256 AD2d 1245, 1245 [1998]).”

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Only certain documentary evidence can qualify for dismissal of an action.

The court in Bianco v Law Offices of Yuri Prakhin, 189 AD3d 1326 [2d Dept 2020] held that only certain documentary evidence can qualify for dismissal of an action under CPLR 3211(a)(1):

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 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Under CPLR 3211(a)(1), a 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 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; Leon v. Martinez, 84 N.Y.2d at 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 (see Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 996–997, 913 N.Y.S.2d 668; 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]; see First Choice Plumbing Corp. v. Miller Law Offs., PLLC, 164 A.D.3d 756, 758, 84 N.Y.S.3d 171). Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1) (see *579 Fox Paine & Co., LLC v. Houston Cas. Co., 153 A.D.3d 673, 678, 60 N.Y.S.3d 294; Granada Condominium III Assn. v. Palomino, 78 A.D.3d at 997, 913 N.Y.S.2d 668).

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Statute of limitations: Court dismissed client’s legal malpractice action.

In Flintlock Constr. Services, LLC v Rubin, Fiorella & Friedman, LLP, 188 AD3d 530 [1st Dept 2020], the court dismissed the client’s legal malpractice action based on the statute of limitations, holding:

Plaintiff commenced this action on September 17, 2018, alleging that defendant committed legal malpractice by entering into the stipulations. Plaintiff alleges that entering into the 2007 stipulation, which shifted the responsibility for Well–Come’s defense from plaintiff’s insurer to plaintiff alone, was professional negligence. In December 2018 defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(5). The motion court ruled that the complaint was time-barred because the statute of limitations had begun to run on July 29, 2013, the date on which the jury rendered its verdict, which was the date on which plaintiff’s damages were reasonably calculable. We affirm.

“On a motion to dismiss a cause of action pursuant to CPLR § 3211(a)(5) as barred by the statute of limitations, a defendant must establish, prima facie, that the time within which to sue has expired. Once that showing has been made, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period.” (Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d 1085, 30 N.Y.S.3d 288 [2d Dept. 2016] [internal quotation marks omitted] ).

“An action to recover damages for an attorney’s malpractice must be commenced within three years from accrual (see CPLR § 214[6]). A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court. In most cases, this accrual time is measured from the day an actionable injury occurs [or when the damages are sufficiently calculable], even if the aggrieved party is then ignorant of the wrong or injury.” (McCoy v v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002] [internal quotation marks and citation omitted]; King Tower Realty Corp. v. G & G Funding Corp., 163 A.D.3d 541, 79 N.Y.S.3d 289 [2d Dept..2018]).

Any damages arising from defendant’s alleged malpractice were sufficiently calculable for pleading purposes when the jury rendered its verdict on July 29, 2013, and the action commenced on September 17, 2018 is time-barred.

Plaintiff has not shown that the statute was tolled or that plaintiff was actively misled or prevented in some extraordinary way from timely commencing a malpractice action (see Yarbro v. Wells Fargo Bank, N.A., 140 A.D.3d 668, 668, 33 N.Y.S.3d 727 [1st Dept. 2016]; Jang Ho Choi v. Beautri Realty Corp., 135 A.D.3d 451, 22 N.Y.S.3d 431 [1st Dept. 2016]).

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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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