Opinion
2015-03500, Index No. 25673/13.
05-11-2016
Thomas E. ANDERSON, respondent, v. William V. ARMENTANO, etc., defendant, Grey & Grey, LLP, appellant.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Amy M. Monahan and Jake Bedor of counsel), for appellant. Arnold E. DiJoseph, P.C., New York, N.Y. (Arnold E. DiJoseph III of counsel), for respondent.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Amy M. Monahan and Jake Bedor of counsel), for appellant.
Arnold E. DiJoseph, P.C., New York, N.Y. (Arnold E. DiJoseph III of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for legal malpractice, the defendant Grey & Grey, LLP, appeals from an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated January 16, 2015, which denied its motion pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
On September 17, 2010, the plaintiff allegedly was injured when he fell into a trench at the Hicksville Parking Facility, which was owned by the Town of Oyster Bay, while performing construction work for his employer. After the incident, the plaintiff sought legal representation from the defendant Grey and Grey, LLP (hereinafter G & G), and another attorney with respect to potential claims arising from the accident. On November 17, 2010, G & G and the plaintiff executed a New York State Workers' Compensation Board “Notice of Retainer and Appearance–Additional Attorney,” which indicated that G & G had been retained to represent the plaintiff “in all proceedings concerning my claim.”
Neither G & G nor the other attorney filed a timely notice of claim against the Town. Although the plaintiff commenced a proceeding for leave to file a late notice of claim against the Town which the Supreme Court granted, this Court reversed the order granting the petition and dismissed the proceeding (see Matter of Anderson v. Town of Oyster Bay, 101 A.D.3d 708, 955 N.Y.S.2d 183 ).
The plaintiff then commenced this action to recover damages for legal malpractice against G & G and the other attorney. Prior to answering, G & G moved pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it on the basis that documentary evidence established that it had been engaged by the plaintiff only with respect to his Workers' Compensation claim. The Supreme Court denied G & G's motion. G & G appeals.
“On 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, 913 N.Y.S.2d 668 ; see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). “A motion to dismiss a complaint based upon 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’ ” (Stein v. Garfield Regency Condominium, 65 A.D.3d 1126, 1128, 886 N.Y.S.2d 54, quoting 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 Held v. Kaufman, 91 N.Y.2d 425, 430–431, 671 N.Y.S.2d 429, 694 N.E.2d 430 ; Parekh v. Cain, 96 A.D.3d 812, 815, 948 N.Y.S.2d 72 ; Sato Constr. Co., Inc. v. 17 & 24 Corp., 92 A.D.3d 934, 935–936, 939 N.Y.S.2d 136 ).
“The evidence submitted in support of a [CPLR 3211(a)(1) ] motion must be ‘documentary’ or the motion must be denied” (Cives Corp. v. George A. Fuller Co., Inc., 97 A.D.3d 713, 714, 948 N.Y.S.2d 658, quoting Fontanetta v. John Doe 1, 73 A.D.3d 78, 84, 898 N.Y.S.2d 569 ; see Attias v. Costiera, 120 A.D.3d 1281, 1282, 993 N.Y.S.2d 59 ; Rodolico v. Rubin & Licatesi, P.C., 114 A.D.3d 923, 925, 981 N.Y.S.2d 144 ). To qualify as documentary evidence, the evidence “must be unambiguous and of undisputed authenticity” (Fontanetta v. John Doe 1, 73 A.D.3d at 86, 898 N.Y.S.2d 569 ; see Flushing Sav. Bank, FSB v. Siunykalimi, 94 A.D.3d 807, 808, 941 N.Y.S.2d 719 ; Granada Condominium III Assn. v. Palomino, 78 A.D.3d at 997, 913 N.Y.S.2d 668 ). “[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, quoting David D. Siegel, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 7B, CPLR C3211:10, at 21–22 [2005 ed]; see Datena v. JP Morgan Chase Bank, 73 A.D.3d 683, 685, 901 N.Y.S.2d 290 ). Affidavits and letters “were not the types of documents contemplated by the Legislature when it enacted this provision” (Fontanetta v. John Doe 1, 73 A.D.3d at 85, 898 N.Y.S.2d 569 ; see Eisner v. Cusumano Constr., Inc., 132 A.D.3d 940, 942, 18 N.Y.S.3d 683 ; J.A. Lee Elec., Inc. v. City of New York, 119 A.D.3d 652, 653, 990 N.Y.S.2d 223 ; Cives Corp. v. George A. Fuller Co., Inc., 97 A.D.3d at 714, 948 N.Y.S.2d 658 ; Granada Condominium III Assn. v. Palomino, 78 A.D.3d at 997, 913 N.Y.S.2d 668 ).
Here, the letters sent by G & G to the plaintiff, submitted by G & G on its motion, did not constitute documentary evidence for the purpose of a motion pursuant to CPLR 3211(a)(1) (see Lindsay v. Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 A.D.3d 790, 792, 12 N.Y.S.3d 124 ; Attias v. Costiera, 120 A.D.3d at 1283, 993 N.Y.S.2d 59 ; Pasquaretto v. Long Is. Univ., 106 A.D.3d 794, 795, 964 N.Y.S.2d 599 ; Cives Corp. v. George A. Fuller Co., Inc., 97 A.D.3d at 714, 948 N.Y.S.2d 658 ; Jones v. Rochdale Vil., Inc., 96 A.D.3d 1014, 1017, 948 N.Y.S.2d 80 ). Similarly, the affirmation of one of G & G's members was not documentary evidence for the purpose of this motion (see Lindsay v. Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 A.D.3d at 792, 12 N.Y.S.3d 124 ; Summer v. Severance, 85 A.D.3d 1011, 1012, 925 N.Y.S.2d 627 ).
Moreover, the documentary evidence which was submitted by G & G, the Workers' Compensation Board Notice of Retainer and Appearance–Additional Attorney, did not utterly refute the plaintiff's allegations, as augmented by his affidavit submitted in opposition to G & G's motion, that G & G's representation of him was not limited to his Workers' Compensation claim (see Town of Huntington v. Long Is. Power Auth., 130 A.D.3d 1013, 1015, 12 N.Y.S.3d 912 ; Board of Educ. of Northport–E. Northport Union Free School Dist. v. Long Is. Power Auth., 130 A.D.3d 953, 956, 14 N.Y.S.3d 450 ; Lindsay v. Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 A.D.3d at 791, 12 N.Y.S.3d 124 ; cf. Turner v. Irving Finkelstein & Meirowitz, LLP, 61 A.D.3d 849, 850, 879 N.Y.S.2d 145 ). This Court's decision in Turner v. Irving Finkelstein & Meirowitz, LLP, 61 A.D.3d at 850, 879 N.Y.S.2d 145, upon which G & G relies, is distinguishable from the instant case, since in Turner, the plaintiff did not submit evidence to rebut the defendant law firm's documentary evidence establishing that it had only been retained to represent the plaintiff on an appeal before the Workers' Compensation Board.
Accordingly, the Supreme Court properly denied G & G's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it.