| Thompsen v Baier |
| 2011 NY Slip Op 04233 [84 AD3d 1062] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Heidi Thompsen, Respondent, v William B. Baier et al.,Appellants. |
—[*1] Jeffrey Levitt, Massapequa, N.Y., for respondent.
In an action to recover damages for legal malpractice and breach of contract, the defendantsappeal from an order of the Supreme Court, Nassau County (Marber, J.), dated June 11, 2010,which denied their motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof denyingthose branches of the defendants' motion which were pursuant to CPLR 3211 (a) (1) and (7) todismiss the first and third causes of action and substituting therefor a provision granting thosebranches of the motion; as so modified, the order is affirmed, without costs or disbursements.
On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action,the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit ofevery possible inference, and determine only whether the facts as alleged fit within anycognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326[2002]; Leon v Martinez, 84 NY2d 83, 87 [1994]; Guayara v Harry I. Katz, P.C., 83 AD3d 661 [2011]; Kuzmin v Nevsky, 74 AD3d 896,897 [2010]). Applying this standard here, the Supreme Court properly denied that branch of thedefendants' motion which was to dismiss the plaintiff's second cause of action to recoverdamages for legal malpractice. Contrary to the defendants' contention, the second cause of actionsufficiently alleged that they breached their duty to exercise "the ordinary reasonable skill andknowledge commonly possessed by a member of the legal profession" (Rudolf v Shayne, Dachs, Stanisci, Corker& Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295,301 [2002]), by delaying commencement of an underlying personal injury action despite theiralleged actual knowledge of impending federal legislation (49 USC § 30106) that wouldbar State-law vicarious liability actions against automobile lessors and rental companies afterAugust 10, 2005 (cf. Darby & Darby v VSI Intl., 95 NY2d 308 [2000]).
The Supreme Court also properly denied that branch of the defendants' motion which was todismiss the plaintiff's fourth cause of action to recover damages for legal malpractice based ondocumentary evidence pursuant to CPLR 3211 (a) (1). A motion pursuant to CPLR 3211 (a) (1)may be granted "only where the documentary evidence utterly refutes plaintiff's factualallegations, conclusively [*2]establishing a defense as a matter oflaw" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; see Leon vMartinez, 84 NY2d at 88; Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010]; Lucia v Goldman, 68 AD3d 1064[2009]; Elm Sea Realty Corp. vChicoy, 68 AD3d 1047 [2009]). Here, the documentary evidence submitted did notconclusively establish that the plaintiff's vehicle was repossessed before the defendants wereretained, or that repossession of the vehicle would have necessarily prevented the plaintiff fromsuccessfully asserting a manufacturing and/or design defect claim in the underlying personalinjury action based upon the alleged failure of her vehicle's airbags to deploy.
However, the Supreme Court should have granted those branches of the defendants' motionwhich were to dismiss the first and third causes of action to recover damages for breach ofcontract. The breach of contract causes of action are duplicative of the legal malpractice causesof action because they arise from the same facts and do not seek distinct and different damages(see Alizio v Feldman, 82 AD3d804 [2011]; Conklin v Owen,72 AD3d 1006, 1007 [2010]; Sitarv Sitar, 50 AD3d 667, 670 [2008]; Town of Wallkill v Rosenstein, 40 AD3d 972, 974 [2007]; cf. Reidy v Martin, 77 AD3d 903[2010]). Dillon, J.P., Covello, Eng and Chambers, JJ., concur.