| Hallman v Kantor |
| 2010 NY Slip Op 03280 [72 AD3d 895] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Paula Ann Hallman, Appellant, v Herbert C. Kantor et al.,Respondents. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Scott E. Kossove ofcounsel), for respondents.
In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiff appealsfrom an order of the Supreme Court, Nassau County (Warshawsky, J.), entered February 5, 2009,which granted the defendants' motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss thecomplaint.
Ordered that the order is affirmed, with costs.
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (1), if the documentaryevidence submitted by the defendant "utterly refutes [the] plaintiff's factual allegations" andconclusively establishes a defense to the asserted claims as a matter of law, the motion may begranted (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Further, ona motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause ofaction, the court must determine whether, accepting the facts alleged in the complaint as true andaccording the plaintiff the benefit of every possible inference, the facts as alleged fit within anycognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]). Applying theseprinciples here, the Supreme Court properly granted the defendants' motion pursuant to CPLR3211 (a) (1) and (7) to dismiss the complaint.
The defendants submitted a retainer agreement reflecting that the plaintiff "understood,accepted and agreed" that the "scope of" their "engagement" was "to represent" her as aco-executor of her deceased father's estate. This documentary evidence conclusively establisheda defense to the plaintiff's claims of malpractice. The plaintiff alleged that she was the subject ofa pending lawsuit, in effect, to recover sums of money due under certain notes she executedbefore her father died, and that the defendants committed legal malpractice by, inter alia, failingto speak with her "about the circumstances surrounding [her] signing of [those] notes," andfailing to "question[ ]" their "validity." However, the documentary evidence demonstrated thatthe plaintiff's individual liability on the notes was a matter outside of the scope of the defendants'representation of the plaintiff in her capacity as co-executor of the estate (see CPLR3211 [a] [1]; AmBase Corp. v DavisPolk & Wardwell, 8 NY3d 428, 435 [2007]; DeNatale v Santangelo, 65 AD3d 1006, 1007 [2009]; Turner v Irving Finkelstein & Meirowitz,LLP, 61 AD3d 849, 850 [2009]).[*2]
Furthermore, the complaint fails to allege facts sufficientto establish that the plaintiff's alleged damages were proximately caused by any acts oromissions of the defendants (see CPLR 3211 [a] [7]; Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438,442 [2007]; Wald v Berwitz, 62AD3d 786 [2009]). Skelos, J.P., Covello, Balkin and Sgroi, JJ., concur. [Prior CaseHistory: 22 Misc 3d 1123(A), 2009 NY Slip Op 50257(U).]