| Hoffman v Colleluori |
| 2011 NY Slip Op 05669 [85 AD3d 1119] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Andrew Hoffman, Appellant, v Anthony J. Colleluori et al.,Respondents. |
—[*1] Traub Lieberman Straus & Shrewsberry, LLP, Hawthorne, N.Y. (Andrew N. Adler andDaniel G. Ecker of counsel), for respondents.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.),dated October 25, 2010, as, upon reargument, adhered to the original determination in an order ofthe same court entered August 5, 2010, granting those branches of the defendants' motion whichwere pursuant to CPLR 3211 (a) (1) and (7) to dismiss the second, third, and fourth causes ofaction in the complaint.
Ordered that the order dated October 25, 2010, is modified, on the law, by deleting theprovision thereof which, upon reargument, adhered to the original determination in the orderentered August 5, 2010, granting those branches of the defendants' motion which were pursuantto CPLR 3211 (a) (1) and (7) to dismiss the second and third causes of action and substitutingtherefor provisions, upon reargument, vacating the determination granting those branches of thedefendants' motion which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the second andthird causes of action and thereupon denying those branches of the defendant's motion; as somodified, the order dated October 25, 2010, is affirmed insofar as appealed from, without costsor disbursements.
The Supreme Court erred in, upon reargument, adhering to its original determinationgranting those branches of the defendants' motion which were pursuant to CPLR 3211 (a) (1) and(7) to dismiss the second and third causes of action to recover damages for legal malpractice. "Amotion to dismiss pursuant to CPLR 3211 (a) (7) will fail if, taking all facts alleged as true andaccording them every possible inference favorable to the plaintiff, the complaint states in somerecognizable form any cause of action known to our law" (Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1018[2010] [internal quotation marks and citation omitted]; see Arnav Indus., Inc. RetirementTrust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]).
Accepting all the facts alleged in the complaint as true, the allegations are sufficient to state acause of action to recover damages for legal malpractice in an underlying federal civil rightsaction. The plaintiff alleged in his complaint, inter alia, that the defendants failed to assert theunderlying causes of action before the expiration of the applicable statutes of limitations, and thattheir negligence was a proximate cause of his damages (see Jennings v Raso, 251 AD2d380 [1998]). While most of the underlying causes of action were time-barred before the plaintiffretained the [*2]defendants, the plaintiff's claim under 42 USC§ 1983 arising from malicious prosecution was viable at the time the defendantscommenced the federal action on the plaintiff's behalf (see Palmer v State of New York, 57 AD3d 364, 364 [2008]; Pendleton v City of New York, 44AD3d 733, 737 [2007]). Moreover, contrary to the defendants' contention, the complaint "setforth allegations from which damages attributable to the defendant[s'] alleged malpractice mightbe reasonably inferred" (Caruso, Caruso& Branda, P.C. v Hirsch, 41 AD3d 407, 410 [2007]; see Fielding v Kupferman, 65 AD3d 437, 442 [2009]).
The Supreme Court also erred in, upon reargument, adhering to its original determinationgranting those branches of the defendants' motion which were pursuant to CPLR 3211 (a) (1) todismiss the legal malpractice causes of action. A motion pursuant to CPLR 3211 (a) (1) may begranted "only where the documentary evidence utterly refutes plaintiff's factual allegations,conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d 314, 326 [2002]; seeThompsen v Baier, 84 AD3d 1062 [2011]). Here, the documentary evidence did notconclusively establish that all of the underlying causes of action were time-barred before theplaintiff retained the defendants.
However, the Supreme Court properly adhered to its original determination granting thatbranch of the defendants' motion which was pursuant to CPLR 3211 (a) (7) to dismiss the fourthcause of action sounding in negligent misrepresentation. That cause of action arises out of thesame facts as the legal malpractice causes of action and does not allege distinct damages (see Iannucci v Kucker & Bruh, LLP, 42AD3d 436, 436-437 [2007]; Sitar vSitar, 50 AD3d 667, 670 [2008]; see also Conklin v Owen, 72 AD3d 1006, 1007 [2010]). We notethat, on appeal, the plaintiff has abandoned his contentions regarding the first cause of actionsounding in breach of contract (see Iatauro v St. John's Univ., 295 AD2d 478 [2002]).Rivera, J.P., Florio, Austin and Cohen, JJ., concur.