Opinion
No. 2007-02921.
April 1, 2008.
In an action, inter alia, to recover damages for legal malpractice, the defendant Richard Tanenbaum appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated March 21, 2007, as denied his motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as asserted against him.
Miranda Sokoloff Sambursky Slone Verveniotis LLP, Mineola, N.Y. (Steven Verveniotis and Maria Thomas of counsel), for appellant.
R. Thomas Masters, Garden City, N.Y., for respondent.
Before: Mastro, J.P., Covello, Dickerson and Eng, JJ.
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the contention of the defendant Richard Tanenbaum, the documentary evidence that he submitted in support of his motion did not conclusively refute the plaintiffs allegations of legal malpractice against him so as to warrant dismissal of the action pursuant to CPLR 3211 (a) (1) insofar as asserted against him. Rather, those documents suggested that at least some of the funds at issue were supposed to be set aside to pay the plaintiffs monthly mortgage obligation, and Tanenbaum's evidence failed to address the plaintiffs allegations that he neglected to set up and maintain an escrow account for those funds, thereby facilitating the default on the mortgage.
Assuming the truth of the allegations set forth in the complaint, and construing those allegations liberally in favor of the plaintiff ( see Nonnon v City of New York, 9 NY3d 825; AG Capital Funding Partners, L.P. v State St. Bank Trust Co., 5 NY3d 582, 591; Leon v Martinez, 84 NY2d 83; Palo v Cronin Byczek, LLP, 43 AD3d 1127), the complaint adequately set forth the requisite elements of a cause of action sounding in legal malpractice ( see generally Rudolf v Shayne, Dachs, Stanisci, Corker Sauer, 8 NY3d 438, 442; Barnett v Schwartz, 47 AD3d 197; J-Mar Serv. Ctr., Inc. v Mahoney, Connor Hussey, 14 AD3d 482, 483). Accordingly, the Supreme Court properly denied that branch of Tanenbaum's motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) insofar as asserted against him ( see Schneider v Hand, 296 AD2d 454).
Tanenbaum's remaining contention is improperly raised for the first time on appeal ( see Matter of Mercury Ins. Group v Ocana, 46 AD3d 561; Sarva v Chakravorty, 34 AD3d 438, 439; Weber v Jacobs, 289 AD2d 226, 227; Fresh Pond Rd. Assoc. v Estate of Schacht, 120 AD2d 561).