| Guayara v Harry I. Katz, P.C. |
| 2011 NY Slip Op 02845 [83 AD3d 661] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Maria Guayara, Respondent, v Harry I. Katz, P.C., et al.,Appellants. |
—[*1] Raul P. Meruelo, New York, N.Y., appellant pro se. Schwartz & Ponterio, PLC, New York, N.Y. (Matthew F. Schwartz of counsel), forrespondent.
In an action to recover damages for legal malpractice, the defendants Harry I. Katz, P.C., andHarry I. Katz appeal, as limited by their brief, from so much of an order of the Supreme Court,Queens County (Grays, J.), dated January 4, 2010, as denied their motion pursuant to CPLR 3211(a) (1) and (7) to dismiss the complaint and all cross claims insofar as asserted against them, andthe defendant Raul Meruelo separately appeals, as limited by his brief, from so much of the sameorder as denied that branch of his separate motion which was pursuant to CPLR 3211 (a) (7) todismiss the complaint insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs to theplaintiff payable by the defendants appearing separately and filing separate briefs.
The plaintiff commenced this action against her former attorneys, Harry I. Katz, P.C., andHarry I. Katz (hereinafter together the Katz defendants) and Raul Meruelo, asserting a separatecause of action against each of them to recover damages for legal malpractice. The causes ofaction alleged, among other things, that the negligent failure to inform her of enforcementdevices available to her to collect on a judgment entered in her favor in the principal sum of$279,079.47, caused her to sell that judgment to a third party at the severely discounted rate of$100,000. After Meruelo answered the complaint, in which, among other things, he assertedcross claims against the Katz defendants for contribution and indemnification, the Katzdefendants moved, in lieu of an answer, to dismiss the complaint insofar as asserted against thempursuant to CPLR 3211 (a) (1) and (7) and to dismiss the cross claims asserted against them byMeruelo. Meruelo separately moved to dismiss the complaint pursuant to, inter alia, CPLR 3211(a) (7). The Supreme Court denied both motions. The Katz defendants and Meruelo separatelyappeal. We affirm the order insofar as appealed from.
To sustain a cause of action alleging legal malpractice, a plaintiff must show that thedefendant attorney "failed to exercise the ordinary reasonable skill and knowledge commonlypossessed by a member of the legal profession" and that "the attorney's breach of thisprofessional duty caused the plaintiff's actual damages" (McCoy v Feinman, 99 NY2d295, 301-302 [2002] [internal [*2]quotation marks omitted]; see Rudolf v Shayne, Dachs, Stanisci,Corker & Sauer, 8 NY3d 438, 442 [2007]; Walker v Glotzer, 79 AD3d 737 [2010]). To succeed on a motionto dismiss a complaint pursuant to CPLR 3211 (a) (1), the documentary evidence relied upon bythe defendant must "conclusively establish[ ] a defense to the asserted claims as a matter of law"(Leon v Martinez, 84 NY2d 83, 88 [1994]). When determining a motion to dismiss acomplaint pursuant to CPLR 3211 (a) (7), "the standard is whether the pleading states a cause ofaction," and "the court must ' "accept the facts as alleged in the complaint as true, accordplaintiffs the benefit of every possible favorable inference, and determine only whether the factsas alleged fit within any cognizable legal theory" ' " (Sokol v Leader, 74 AD3d 1180, 1180-1181 [2010], quoting Nonnon v City of New York, 9 NY3d825, 827 [2007], quoting Leon v Martinez, 84 NY2d at 87-88).
Here, the complaint alleged, inter alia, that but for the Katz defendants' and Meruelo's failureto inform her of the enforcement options available to her to collect on the judgment, the plaintiffwould not have sold the judgment at such a discounted value and would have collected the fullamount of the judgment. Accordingly, the complaint states legally cognizable causes of actionagainst the Katz defendants and Meruelo sounding in legal malpractice. Thus, the Supreme Courtproperly denied those branches of the Katz defendants' and Meruelo's separate motions whichwere to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (7).Moreover, as the documents submitted by the Katz defendants do not conclusively dispose of theplaintiff's claims against them, the Supreme Court properly denied that branch of the Katzdefendants' motion which was to dismiss the complaint insofar as asserted against them pursuantto CPLR 3211 (a) (1).
The Supreme Court also properly denied that branch of the Katz defendants' motion whichwas to dismiss the cross claims for contribution and indemnification asserted against them byMeruelo (see Schauer v Joyce, 54 NY2d 1 [1981]; Soussis v Lazer, Aptheker, Rosella & Yedid, P.C., 66 AD3d 993,995 [2009]; Lanoce v Anderson, Banks, Curran & Donoghue, 259 AD2d 965 [1999]).Covello, J.P., Belen, Hall and Cohen, JJ., concur.