| Douglas v Dashevsky |
| 2009 NY Slip Op 04187 [62 AD3d 937] |
| May 26, 2009 |
| Appellate Division, Second Department |
| Nancy Douglas, Respondent, v Paul Dashevsky,Appellant. |
—[*1] Frankel & Newfield, P.C., Garden City, N.Y. (Jason Newfield of counsel), forrespondent.
In an action to recover damages for legal malpractice, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Weber, J.), dated April 21, 2008, which denied his motionto dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7).
Ordered that the order is affirmed, with costs.
The plaintiff retained the defendant to represent her in a claim against her former employerfor wrongfully discharging her as a result of a medical condition. The plaintiff contends that thedefendant advised her not to file a claim with her employer's disability carrier and as a result shewas denied disability benefits for not filing a timely claim. The defendant moved to dismiss thecomplaint pursuant to CPLR 3211 (a) (1) and (7). The defendant maintained that the plaintiffretained him solely for the purposes of obtaining a damage award on the wrongful terminationclaim and restoring her to her prior position. The defendant argues that the plaintiff's claim thatshe was disabled at the time and entitled to benefits contradicts the representations that theplaintiff made to him and alleged in her termination action that she was capable of performingher job.
To demonstrate entitlement to dismissal of a complaint pursuant to CPLR 3211 (a) (1), thedocumentary evidence submitted must conclusively establish a defense to the asserted claims, asa matter of law (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Williams v Williams, 36 AD3d693, 695 [2007]; New York Community Bank v Snug Harbor Sq. Venture, 299AD2d 329, 330 [2002]). Here, the retainer agreements submitted by the defendant do notestablish, as a matter of law, that the defendant's obligation was to advise the plaintiff solely withrespect to her wrongful termination action against her employer. The one page of the disabilitycarrier's policy along with the complaint from the action alleging wrongful termination fails toconclusively establish that the plaintiff would not otherwise have been entitled to receivebenefits under the policy, had she filed a timely claim.
Further, "in reviewing a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint forfailure to state a cause of action, the facts as alleged in the complaint must be accepted as true,the plaintiff is accorded the benefit of every possible favorable inference, and the court's functionis to determine only whether the facts as alleged fit within any cognizable legal theory" (Kupersmith [*2]v Winged Foot Golf Club, Inc., 38 AD3d 847, 848 [2007];see Leon v Martinez, 84 NY2d at 87-88; Board of Educ. of City School Dist. of Cityof New Rochelle v County of Westchester, 282 AD2d 561, 562 [2001]). Here, the plaintiffhas pleaded sufficient facts to fit within a theory of legal malpractice.
The action is not barred by the doctrine of judicial estoppel since the plaintiff's actionpredicated upon wrongful termination was settled and did not result in a judgment (seeKimco of N.Y. v Devon, 163 AD2d 573, 575 [1990]). Skelos, J.P., Fisher, Florio andLeventhal, JJ., concur.