| Walker v Kramer |
| 2009 NY Slip Op 04414 [63 AD3d 723] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Judith Walker, Respondent-Appellant, v Lynn AdairKramer et al., Respondents, and Gregory Rabinowitz,Appellant-Respondent. |
—[*1] Ronald A. Lenowitz, Woodbury, N.Y., for respondent-appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Brett A. Scher andRobert J. Pariser of counsel), for respondents.
In an action, inter alia, to recover damages for legal malpractice, the defendant GregoryRabinowitz appeals, as limited by his brief, from so much of an order of the Supreme Court,Suffolk County (Baisley, Jr., J.), dated December 11, 2007, as denied that branch of his motionwhich was pursuant to CPLR 3211 (a) (1) and (7) to dismiss so much of the complaint insofar asasserted against him as sought to recover damages for legal malpractice based on his failure toprepare necessary papers in the plaintiff's underlying divorce action to transfer the maritalresidence for equitable distribution purposes, and the plaintiff cross-appeals, as limited by herbrief, from so much of the same order as granted those branches of the cross motion of thedefendants Lynn Adair Kramer, Kramer & Rabinowitz, LLC, and Kramer & Rubin, PLLC,which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as assertedagainst the defendants Lynn Adair Kramer and Kramer & Rabinowitz, LLC.
Ordered that the order is modified, on the law, by deleting the provision thereof grantingthose branches of the cross motion of the defendants Lynn Adair Kramer, Kramer & Rabinowitz,LLC, and Kramer & Rubin, PLLC, which were pursuant to CPLR 3211 (a) (1) and (7) to dismissso much of the complaint as sought to recover damages for legal malpractice against thedefendants Lynn Adair Kramer [*2]and Kramer & Rabinowitz,LLC, and substituting therefor a provision denying those branches of the cross motion; as somodified, the order is affirmed insofar as appealed and cross-appealed from, with one bill ofcosts payable to the plaintiff by the defendant Gregory Rabinowitz and the defendants LynnAdair Kramer, Kramer & Rabinowitz, LLC, and Kramer & Rubin, PLLC, appearing separatelyand filing separate briefs.
"On a motion to dismiss based upon documentary evidence, dismissal is only warranted ifthe documentary evidence submitted conclusively establishes a defense to the asserted claims asa matter of law" (Klein v Gutman,12 AD3d 417, 418 [2004]; see CPLR 3211 [a] [1]; Saxony Ice Co., Div. of Springfield IceCo., Inc. v Ultimate Energy Rest. Corp., 27 AD3d 445 [2006]). Moreover, where"evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant toCPLR 3211 (a) (7), the court must determine whether the plaintiff has a cause of action, notwhether the plaintiff has stated one" (Steve Elliot, LLC v Teplitsky, 59 AD3d 523, 524 [2009], citingGuggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). "[U]nless it has been shown thata material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be saidthat no significant dispute exists regarding it . . . dismissal should not eventuate"(Guggenheimer v Ginzburg, 43 NY2d at 275).
Applying these standards here, the Supreme Court properly denied that branch of the motionof the defendant Gregory Rabinowitz which was to dismiss so much of the complaint as soughtto recover damages for legal malpractice based on his failure to prepare necessary papers in theplaintiff's underlying divorce action to transfer the marital residence for equitable distributionpurposes (see Lebeau v Morales, 245 AD2d 269 [1997]). However, the Supreme Courterred in determining that pursuant to CPLR 3211 (a) (1) and (7) the defendants Lynn AdairKramer and Kramer & Rabinowitz, LLC (hereinafter together the Kramer defendants), wereentitled to dismissal of so much of the complaint as sought to recover damages for legalmalpractice against them. The papers submitted by the Kramer defendants did not conclusivelyrefute the material facts alleged in the complaint relating to claims of legal malpractice againstthem (see Guggenheimer v Ginzburg, 43 NY2d at 274-275; Steve Elliot, LLC vTeplitsky, 59 AD3d at 523), nor did their documentary evidence conclusively establish thatthe plaintiff lacks a viable claim of legal malpractice against them (see CPLR 3211 [a][1]).
The plaintiff's remaining contentions are without merit. Fisher, J.P., Covello, Angiolillo andLeventhal, JJ., concur. [See 2007 NY Slip Op 34008(U).]