Summary
affirming dismissal of failure-to-advise claim where agreement executed by the plaintiff flatly contradicted the allegation that the relevant advice was not given
Summary of this case from Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLPOpinion
October 28, 1997
Appeal from Supreme Court, New York County (Ira Gammerman, J.).
Plaintiff client's allegation that he was not advised by defendant law firm that a settlement agreement, which he executed in an earlier action, withdrew his counterclaims in that action with prejudice, is flatly contradicted by the agreement itself. "Although on a motion to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the facts pleaded are presumed to be true and are accorded every favorable inference, where, as here, the allegations consist of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, they are not entitled to such consideration" ( Ullmann v. Norma Kamali, Inc., 207 A.D.2d 691, 692; see also, Wexler v. Shea Gould, 211 A.D.2d 450). Since plaintiff was competent to execute the settlement agreement, and no fraud is alleged, he is responsible for his signature and is bound to read and know what he signed (see, Pimpinello v. Swift Co., 253 N.Y. 159, 162-163).
Concur — Rosenberger, J.P., Wallach, Nardelli, Williams and Colabella, JJ.