Judith N. Berger, Babylon, N.Y., for appellant.
Kaufman Dolowich Voluck & Gonzo, LLP, Woodbury, N.Y. (Brett A. Scher and Jonathan Isaacson of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, JEFFREY A. COHEN, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for legal malpractice, breach of contract, and violation of Judiciary Law § 487, the plaintiff appeals, as limited by his brief, from stated portions of (1) an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated July 5, 2011, which, inter alia, granted those branches of the defendant's motion which were pursuant to CPLR 3211(a)(1) to dismiss the causes of action alleging legal malpractice, breach of contract, and fraud, and pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging abuse of process, "tortious breach of contract, " and violation of Judiciary Law § 487, and (2) a judgment of the same court entered August 2, 2011, which, inter alia, upon the order, is in favor of the defendant and against him, in effect, dismissing the amended complaint.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is modified, on the law, by deleting the provisions thereof dismissing the causes of action alleging legal malpractice and violation of Judiciary Law § 487; as so modified, the judgment is affirmed insofar as appealed from, those branches of the defendant's motion which were to dismiss the causes of action alleging legal malpractice and violation of Judiciary Law § 487 are denied, those causes of action are reinstated and severed, and the order is modified accordingly; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the intermediate order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a]).
This is an action alleging, inter alia, legal malpractice, arising from the defendant's representation of the plaintiff in an action to recover damages for personal injuries sustained by the plaintiff in a motor vehicle accident. The plaintiff alleges that after the insurer for the alleged tortfeasors in the underlying action notified the defendant that it did not intend to settle the underlying action, the defendant advised the plaintiff to pay an expert witness fee directly to the expert he intended to use at trial. The plaintiff also alleges that, when he refused to advance the expert witness fee, the defendant sought to be relieved as counsel on the allegedly spurious ground that the plaintiff and the defendant had irreconcilable differences.
In an order dated July 5, 2005 (hereinafter the July 2005 order), the defendant's motion to be relieved as counsel in the underlying action was granted, in effect, upon the plaintiff's default. The plaintiff moved, inter alia, to vacate the July 2005 order. While the plaintiff's motion was pending, the Supreme Court, in an order dated March 23, 2006 (hereinafter the March 2006 order), directed the dismissal of the underlying action.
In an order dated May 24, 2007 (hereinafter the May 2007 order), made after a hearing on the issue of whether the plaintiff had been served with a copy of the papers constituting the defendant's motion to be relieved as counsel, the Supreme Court found that the plaintiff had not been served and, thus, demonstrated a reasonable excuse for his failure to oppose the defendant's motion to be relieved as counsel. Accordingly, the Supreme Court vacated the July 2005 order, and directed the underlying action to be restored to the trial calendar. The defendant subsequently moved again to be relieved as counsel, contending, in his affirmation in support of his motion, that the plaintiff "steadfastly refused to pay the litigation expenses that [would] be incurred in the prosecution of his... case."
On July 25, 2007, the parties stipulated to the substitution of the defendant as counsel (hereinafter the July 2007 stipulation). On August 12, 2008, the Supreme Court dismissed the underlying action. The parties dispute the basis for the August 2008 dismissal. The plaintiff alleges that the August 2008 dismissal was based on the Supreme Court's determination that more than one year had elapsed between the July 2005 order entered on the plaintiff's default and the May 2007 order vacating that default and restoring the action to the trial calendar, and that the underlying action was, thus, not restorable pursuant to the May 2007 order. He further alleges that, inasmuch as the defendant first withdrew as counsel under false pretenses, and had been reinstated as counsel in May 2007, the defendant's failure to timely rectify the consequences of the March 2006 dismissal of the underlying action constituted legal malpractice. The defendant contends that the August 2008 dismissal was based on the failure of the plaintiff's subsequent counsel to prosecute the underlying action. The only documentary evidence in the record as to the court's reason for the August 2008 dismissal was an entry in the Supreme Court's computerized calendar record indicating that the underlying action was dismissed "PER SFO J.EDB 3-23-2006."
The plaintiff thereafter commenced the instant legal malpractice action, and the defendant moved, in effect, to dismiss the amended complaint pursuant to CPLR 3211(a)(1), (5), and (7). In an order dated July 5, 2011, the Supreme Court granted that branch of the defendant's motion which was to dismiss the cause of action alleging legal malpractice, based on its conclusion that documentary evidence established that the underlying action was ultimately dismissed more than one year after the defendant was relieved as counsel, that events subsequent to the substitution of counsel could not be attributed to the defendant, and that, as a matter of law, the defendant's refusal to advance the expert's fee was not a proximate cause of the August 2008 dismissal. The Supreme Court also directed the dismissal of the causes of action alleging breach of contract, fraud, breach of fiduciary duty, and deceit as duplicative of the cause of action alleging legal malpractice. It further directed the dismissal of the remaining causes of action for failure to state a cause of action. In a judgment entered August 2, 2011, the Supreme Court dismissed the amended complaint.
"To succeed on a motion to dismiss [a complaint] pursuant to CPLR 3211(a)(1), the documentary evidence relied on by the defendant must conclusively establish[ ] a defense to the asserted claims as a matter of law" (Ofman v Katz, 89 A.D.3d 909, 910 [internal quotation marks omitted]; see Leon v Martinez, 84 N.Y.2d 83, 87-88). "[T]he documentary evidence... must be such that it resolves all factual issues as a matter of law" (Martin v New York Hosp. Med. Ctr. of Queens, 34 A.D.3d 650, 650 [internal quotation marks omitted]). "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the ...