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Prott v. Lewin & Baglio, LLP

Supreme Court of New York, Second Department

May 10, 2017

Jacinto Prott, respondent,
v.
Lewin & Baglio, LLP, et al., appellants. Index No. 9322/15

          Carroll, McNulty & Kull, LLC, New York, NY (Robert Seigal of counsel), for appellants.

          Sacco & Fillas, LLP, Astoria, NY (Donald N. Rizzuto and Patricia R. Lynch of counsel), for respondent.

          WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, SANDRA L. SGROI, JJ.

          DECISION & ORDER

         In an action, inter alia, to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Queens County (Livote, J.), dated February 25, 2016, which denied their motion pursuant to CPLR 3211(a) to dismiss the complaint.

         ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging breach of contract and negligence, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

         The plaintiff commenced this action against the defendants, inter alia, to recover damages for legal malpractice. The plaintiff alleged that, although he retained the defendants to prosecute an action on his behalf, the defendants failed to commence the action before the expiration of the applicable statute of limitations in December 2012. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint, and the Supreme Court denied the motion.

         "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 granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law" (Mawere v Landau, 130 A.D.3d 986, 987 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326). The evidence submitted in support of such motion must be " documentary'" or the motion must be denied (Fontanetta v John Doe 1, 73 A.D.3d 78, 84, quoting Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 22; see Cives Corp. v George A. Fuller Co., Inc., 97 A.D.3d 713, 714). In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence, it must be "unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino, 78 A.D.3d 996, 996-997 [internal quotation marks omitted]). "[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 [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; see Attias v Costiera, 120 A.D.3d 1281, 1283; Cives Corp. v George A. Fuller Co., Inc., 97 A.D.3d at 714; Granada Condominium III Assn. v Palomino, 78 A.D.3d at 997; Fontanetta v John Doe 1, 73 A.D.3d at 86).

         Here, the evidence submitted by the defendants, which included a letter dated September 28, 2012, purporting to terminate the attorney-client relationship between the plaintiff and the defendants, did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) and, in any event, failed to utterly refute the plaintiff's factual allegations, thereby failing to conclusively establish a defense as a matter of law (see Mawere v Landau, 130 A.D.3d at 990; Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 A.D.3d 790, 792; 25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co., 127 A.D.3d at 851; Louzoun v Kroll Moss & Kroll, LLP, 113 A.D.3d 600, 601-602). Therefore, the Supreme Court properly denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(1) to dismiss the legal malpractice cause of action.

         Furthermore, since the defendants' evidence failed to establish that a material fact as claimed by the plaintiff, namely, the existence of an attorney-client relationship at the time of the alleged malpractice, was "not a fact at all" and that "no significant dispute exists regarding it" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275), the Supreme Court properly denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the legal malpractice cause of action (see Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 A.D.3d at 793).

         However, the causes of action alleging breach of contract and negligence are duplicative of the legal malpractice cause of action, since they arise from the same facts as those underlying the legal malpractice cause of action, and do not allege distinct damages (see Lewis, Brisbois, Bisgaard & Smith, LLP v Law Firm of Howard Mann, 141 A.D.3d 574, 576; Smith v Kaplan Belsky Ross Bartell, LLP, 126 A.D.3d 877, 879; Keness v Feldman, Kramer & Monaco, P.C., 105 A.D.3d 812, 813-814). Accordingly, the Supreme Court should have granted that branch of ...


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