- November 20, 2017
L. Sherman, Ossining, NY, appellant pro se.
Palazzo, Hawthorne, NY, for respondent.
C. DILLON, J.P. JOHN M. LEVENTHAL HECTOR D. LASALLE VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to recover damages for legal malpractice, the
defendant appeals from an order of the Supreme Court,
Westchester County (Sam D. Walker, J.), dated February 28,
2017, which denied his motion pursuant to CPLR 3211(a)(1) to
dismiss the complaint.
that the order is affirmed, with costs.
order dated June 18, 2013, the Supreme Court, Westchester
County, assigned the defendant to represent the plaintiff in
an underlying matrimonial action commenced against the
plaintiff by his now former wife (hereinafter the wife). On
April 11, 2014, the parties to the matrimonial action
appeared with their attorneys before the court and agreed to
resolve all issues pending in the action. As a result, the
wife's counsel read an outline of the parties'
agreement into the record, which included the understanding
that a formal written stipulation would follow. In addition,
both the plaintiff and the wife, in response to questions
from the court, indicated that they understood the terms and
conditions as placed on the record and that they were
satisfied with their legal representation. Thereafter, in May
2014, the plaintiff and the wife signed the written
stipulation of settlement (hereinafter the stipulation).
custody of the parties' two minor children, the
wife's counsel stated in court that, pursuant to the
parties' outline of the agreement, the wife would have
"primary physical custody of the children'' and
the plaintiff would have access time. However, Article IV of
the stipulation stated that the wife was to have
"primary physical custody and legal custody."
Regarding child support, both the April 2014 outline of the
agreement and the subsequent stipulation provided, inter
alia, that the plaintiff s pro rata share of the combined
parental income was only 13%, and that his child support
payments were to be paid in advance in one lump sum payment
from his share of the equity in the marital residence.
Despite the plaintiffs nominal income, he was also required
to pay in advance 50% of the children's college expenses.
April 2016, the plaintiff commenced this legal malpractice
action against the defendant by the filing of a summons with
notice. On or about September 21, 2016, a verified complaint
was served upon the defendant. In late September 2016, the
defendant moved pursuant to CPLR 3211(a)(1) to dismiss the
complaint, arguing that the transcript from the April 2014
court appearance conclusively established a defense as a
matter of law. The plaintiff opposed the motion, arguing,
inter alia, that the transcript from the April 2014 court
appearance did not represent the parties' final agreement
as set forth in the subsequent stipulation. The Supreme Court
denied the defendant's motion, and the defendant appeals.
claim for legal malpractice is viable, despite settlement of
the underlying action, if it is alleged that settlement of
the action was effectively compelled by the mistakes of
counsel'" (Schiff v Sallah Law Firm, P.C.,
128 A.D.3d 668, 669, quoting Tortura v Sullivan Papain
Block McGrath & Cannavo, P.C., 21 A.D.3d 1082, 1083;
see Katz v Herzfeld & Rubin, P.C., 48 A.D.3d
a pre-answer motion to dismiss pursuant to CPLR 3211, the
pleading is to be afforded a liberal construction and the
plaintiff's allegations are accepted as true and accorded
the benefit of every possible favorable inference"
(Granada Condominium III Assn. v Palomino, 78 A.D.3d
996, 996). "'A motion pursuant to CPLR 3211(a)(1) to
dismiss based on documentary evidence may be appropriately
granted only where the documentary evidence utterly refutes
the plaintiff's factual allegations, thereby conclusively
establishing a defense as a matter of law'"
(Feldshteyn v Brighton Beach 2012, LLC, 153 A.D.3d
670, 670, quoting Sabre Real Estate Group, LLC v
Ghazvini, 140 A.D.3d 724, 724; see Hoeg Corp. v
Peebles Corp., 153 A.D.3d 607; 4777Food Servs. Corp.
v Anthony P. Gallo, P.C., 150 A.D.3d 1054, 1055-1056).
the documentary evidence submitted by the defendant,
consisting of the transcript from the April 2014 court
appearance, failed to utterly refute the plaintiffs
allegations of malpractice, thereby failing to conclusively
establish a defense as a matter of law in this legal
malpractice action (see Prott v Lewin ...