| Zorn v Gilbert |
| 2009 NY Slip Op 01980 [60 AD3d 850] |
| March 17, 2009 |
| Appellate Division, Second Department |
| Carol Zorn, Appellant, v Rita K. Gilbert et al.,Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (Thomas A.Leghorn, Jay A. Wechsler, and Cathleen Giannetta of counsel), for respondents.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals froman order of the Supreme Court, Westchester County (Donovan, J.), entered January 3, 2008,which granted that branch of the defendants' motion which was pursuant to CPLR 3211 (a) (7) todismiss the complaint for failure to state a cause of action and denied her cross motion pursuantto CPLR 3025 (b) for leave to serve and file an amended complaint.
Ordered that the order is modified, on the law and in the exercise of discretion, (1) bydeleting the provision thereof granting that branch of the defendants' motion which was pursuantto CPLR 3211 (a) (7) to dismiss the first cause of action to recover damages for legal malpracticeand substituting therefor a provision denying that branch of the motion, and (2) by deleting theprovision thereof denying the plaintiff's cross motion for leave to serve and file an amendedcomplaint and substituting therefor a provision granting the cross motion; as so modified, theorder is affirmed, with costs to the plaintiff.
" 'Affording the complaint a liberal construction, accepting as true all facts alleged therein,and according the plaintiff the benefit of every possible inference' " (Dank v Sears Holding Mgt. Corp., 59AD3d 582, 583 [2009], quoting Love v Rebecca Dev., Inc., 56 AD3d 733, 733 [2008]; seeLeon v Martinez, 84 NY2d 83, 87 [1994]), the complaint, as amplified by the plaintiff'saffidavits (see Sheroff v DreyfusCorp., 50 AD3d 877, 878 [2008]), adequately states a cause of action to recoverdamages for legal malpractice (see Palov Cronin & Byczek, LLP, 43 AD3d 1127 [2007]). [*2]Accordingly, the Supreme Court should not have dismissed the firstcause of action contained in the original complaint (see CPLR 3211 [a] [7]).
Moreover, the plaintiff's cross motion for leave to serve and file an amended complaintshould have been granted. "Leave to amend should be freely given absent prejudice or surprise"(Rosicki, Rosicki & Assoc., P.C. vCochems, 59 AD3d 512 , 514 [2009]). The proposed amendments, which relate to theplaintiff's claims alleging legal malpractice, were neither palpably insufficient nor patentlydevoid of merit, and there was no evidence that those amendments would prejudice or surprisethe defendants (see CPLR 3025 [b]; Barnes Coy Architects, P.C. v Shamoon, 53 AD3d 466, 467[2008]; Lucido v Mancuso, 49AD3d 220, 222 [2008], lv granted 2008 NY Slip Op 68750[U] [2008]). Rivera, J.P.,Ritter, Covello and Angiolillo, JJ., concur.