| Simpson v Alter |
| 2010 NY Slip Op 08089 [78 AD3d 813] |
| November 9, 2010 |
| Appellate Division, Second Department |
| ShawnDya L. Simpson, Respondent, v Bernard M. Alter etal., Appellants, et al., Defendant. |
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In an action, inter alia, to recover damages for legal malpractice, the defendants Bernard M.Alter and Alter & Barbaro appeal, as limited by their brief, from so much of an order of theSupreme Court, Nassau County (Phelan, J.), entered March 8, 2010, as denied their motionpursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the appellants' motion which was todismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (5) based uponthe doctrine of collateral estoppel. The doctrine of collateral estoppel bars relitigation of an issuewhich has necessarily been decided in a prior action and is determinative of the issues raised inthe present action, provided that there was a full and fair opportunity to contest the decision nowalleged to be controlling (see Tydings vGreenfield, Stein & Senior, LLP, 11 NY3d 195, 199 [2008]; Buechel v Bain, 97NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]; Mahler v Campagna, 60 AD3d1009, 1011 [2009]). Preclusive effect may only be given to issues that were "actuallylitigated, squarely addressed and specifically decided" (Ross v Medical Liab. Mut. Ins.Co., 75 NY2d 825, 826 [1990]; seeMotors Ins. Corp. v Mautone, 41 AD3d 800, 801 [2007]). Here, the appellants failed toestablish that the issue of whether the appellant Bernard M. Alter (hereinafter Alter) breached hisduty to the plaintiff by divulging confidential information which she allegedly imparted to himwhen he was her attorney in 2003 was actually litigated, squarely addressed, and specificallydecided in a prior 2007 proceeding pursuant to Election Law article 16, in which Alterrepresented candidate Diana Johnson in her challenge to the plaintiff's residency. Furthermore,"[c]ollateral estoppel is a flexible doctrine grounded in the facts and realities of a particularlitigation which should not be rigidly or mechanically applied since it is, at its core, an equitabledoctrine reflecting general concepts of fairness" (Matter of Hunter, 6 AD3d 117, 131 n 2, 131-132 [2004],affd 4 NY3d 260 [2005]; see Buechel v Bain, 97 NY2d at 303). Additionalfactors supporting a determination that the [*2]doctrine shouldnot be rigidly applied here are that the denial of the plaintiff's motion to disqualify Alter fromrepresenting Diana Johnson in the 2007 election proceeding was not essential to the resolution ofthe ultimate issue in that proceeding, which was whether the plaintiff was a resident of KingsCounty, and that the plaintiff's failure to appeal the adverse ruling on the disqualification motionwas reasonable since she ultimately succeeded in having the challenge to her residencydismissed.
The Supreme Court also properly denied that branch of the appellants' motion which was todismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (7). On amotion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the courtmust accept the facts alleged in the pleading as true, accord the plaintiff the benefit of everypossible inference, and determine only whether the facts as alleged fit within any cognizablelegal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002];Leon v Martinez, 84 NY2d 83, 87 [1994]; Sokol v Leader, 74 AD3d 1180 [2010]). "Where evidentiarymaterial is submitted on a CPLR 3211 (a) (7) motion, it may be considered by the court, butunless the defendant demonstrates, without significant dispute, that a material fact alleged by thecomplaint is not a fact at all, the motion will not be granted" (Quesada v Global Land, Inc., 35 AD3d 575, 576 [2006]; see Caravousanos v Kings CountyHosp., 74 AD3d 716 [2010]). Contrary to the appellants' contention, the documentaryevidence which indicated that certain information about the plaintiff's residency status may havebeen publicly available does not completely disprove her factual allegation that Alter divulgedpersonal information which she had imparted to him when he represented her in 2003.Furthermore, the complaint sufficiently pleads allegations from which damages attributable to theappellants' alleged legal malpractice might be reasonably inferred (see Kempf v Magida, 37 AD3d763, 764 [2007]; see also Rock CitySound, Inc. v Bashian & Farber, LLP, 74 AD3d 1168 [2010]). Prudenti, P.J., Angiolillo,Eng and Sgroi, JJ., concur. [Prior Case History: 2010 NY Slip Op 30495(U).]