| Reiver v Burkhart Wexler & Hirschberg, LLP |
| 2010 NY Slip Op 04565 [73 AD3d 1149] |
| May 25, 2010 |
| Appellate Division, Second Department |
| Allan Reiver et al., Appellants, v Burkhart Wexler &Hirschberg, LLP, et al., Respondents. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Scott E. Kossove ofcounsel), for respondents.
In an action to recover damages for breach of fiduciary duty and legal malpractice, theplaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court,Nassau County (Bucaria, J.), entered August 19, 2009, as granted that branch of the defendants'motion which was pursuant to CPLR 3211 (a) to dismiss the cause of action sounding in breachof fiduciary duty.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendants' motion which was, pursuant to CPLR 3211 (a), to dismiss the cause ofaction sounding in breach of fiduciary duty is denied.
The plaintiffs commenced this action against their former attorneys, alleging, inter alia, thatthe attorneys breached their fiduciary duty to them by charging them excessive legal fees. In lieuof answering, the defendants moved to dismiss the complaint pursuant to CPLR 3211 (a). Insupport of their motion, the defendants submitted the complaint, the affidavit of an attorney fromanother firm who was alleged by the plaintiffs to have been engaged by the defendants as a legalconsultant, and copies of the invoices the defendants had sent to the plaintiffs. The SupremeCourt granted the motion, concluding that the plaintiffs' allegations in support of the cause ofaction sounding in breach of fiduciary duty "are unsupported by any documentation, and withoutany affidavits from the plaintiffs that remed[y] such defect, the plaintiffs do not establish such acause of action."
In considering a motion to dismiss pursuant to CPLR 3211, the court must afford thecomplaint a liberal construction and "determine only whether the facts as alleged fit within anycognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). "Whether aplaintiff can ultimately establish its allegations is not part of the calculus" (EBC I, Inc. vGoldman, Sachs & Co., 5 NY3d 11, 19 [2005]). Contrary to the defendants' contentions onappeal, the allegations of the complaint are sufficient to state a viable cause of action sounding inbreach of fiduciary duty. Furthermore, "CPLR 3211 allows plaintiff to submit affidavits, but itdoes not oblige him to do so on penalty of dismissal . . . [U]nless the motion todismiss is converted by the court to a motion for summary judgment, he will not be penalizedbecause he has not made an evidentiary showing in support of his complaint" (Rovello vOrofino Realty Co., 40 NY2d 633, [*2]635 [1976]). Sincethe Supreme Court did not convert the defendants' motion into one for summary judgment, "theplaintiff[s] [were] not put on notice of any obligation to come forward with evidentiary supportfor [their] claims" (Russo v Macchia-Schiavo, 72 AD3d 786 [2010]; see Nonnon vCity of New York, 9 NY3d 825, 827 [2007]). Thus dismissal pursuant to CPLR 3211 (a) (7)was not warranted.
Moreover, the materials submitted by the defendants in support of their motion did notconstitute "documentary evidence" within the meaning of CPLR 3211 (a) (1) (see Fontanettav John Doe 1, 73 AD3d 78 [2010]) and, in any event, did not "utterly refute[ ] plaintiff[s']factual allegations, conclusively establishing a defense as a matter of law" (Goshen v MutualLife Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d at88; Russo v Macchia-Schiavo, 72 AD3d 786 [2010]; Martin v New York Hosp. Med.Ctr. of Queens, 34 AD3d 650 [2006]). Thus, dismissal pursuant to CPLR 3211 (a) (1) wasnot warranted.
Accordingly, the Supreme Court erred in granting that branch of the defendants' motionwhich was to dismiss the cause of action sounding in breach of fiduciary duty. Prudenti, P.J.,Angiolillo, Balkin and Chambers, JJ., concur.