| Ofman v Katz |
| 2011 NY Slip Op 08335 [89 AD3d 909] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Mendel E. Ofman, Appellant, v Stephen A. Katz,Respondent. |
—[*1] Furman Kornfeld & Brennan, LLP, New York, N.Y. (Bain R. Loucks and A. Michael Furman ofcounsel), for respondent.
In an action to recover damages for legal malpractice and breach of contract, the plaintiff appealsfrom an order of the Supreme Court, Kings County (Bunyan, J.), entered August 31, 2009, whichgranted the defendant's 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 granting thatbranch of the defendant's motion which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss thecause of action sounding in legal malpractice and substituting therefor a provision denying that branch ofthe motion; as so modified, the order is affirmed, without costs or disbursements.
In a legal malpractice action, a plaintiff must show that the defendant attorney "failed to exercise theordinary reasonable skill and knowledge commonly possessed by a member of the legal profession"and that "the attorney's breach of this professional duty caused the plaintiff's actual damages"(McCoy v Feinman, 99 NY2d 295, 301-302 [2002] [internal quotation marks omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker &Sauer, 8 NY3d 438, 442 [2007]; Guayara v Harry I. Katz, P.C., 83 AD3d 661, 662 [2011]; Alizio v Feldman, 82 AD3d 804, 804[2011]). When determining a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failureto state a cause of action, "the court must accept the facts alleged in the pleading as true, accord theplaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit withinany cognizable legal theory" (Thompsen vBaier, 84 AD3d 1062, 1063 [2011]; see Goshen v Mutual Life Ins. Co. of N.Y., 98NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 87 [1994]; Guayara v Harry I.Katz, P.C., 83 AD3d at 662; Kuzmin vNevsky, 74 AD3d 896, 897 [2010]). To succeed on a motion to dismiss pursuant to CPLR3211 (a) (1), the documentary evidence relied on by the defendant must "conclusively establish[ ] adefense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d at 88; seeGuayara v Harry I. Katz, P.C., 83 AD3d at 662).
Applying these standards to the instant case, the Supreme Court erred in granting that branch of thedefendant's motion which was to dismiss the cause of action sounding in legal malpractice. The plaintiffalleged in his complaint, among other things, that the defendant failed to successfully negotiate or fullylitigate the issue of whether a previously existing stipulation of [*2]settlement in one matter was intended to relieve him of liability for theclaims interposed against him in another matter. The plaintiff also alleged that, but for this failure, hewould have obtained either a general release or a favorable ruling that the stipulation of settlementconstituted a general release, and been able to successfully defend the claims interposed against him inthe second matter on the basis of that release. Accordingly, the complaint states a legally cognizablecause of action against the defendant sounding in legal malpractice (see Thompsen v Baier, 84AD3d at 1063; Guayara v Harry I. Katz, P.C., 83 AD3d at 663). Moreover, although thedefendant initially raised the affirmative defense of release in this action, and appealed from the denial ofa motion to dismiss the complaint based upon this defense, this Court previously held that there wereissues of fact as to which disputes the stipulation of settlement was intended to settle (see Ofman v Campos, 12 AD3d 581[2004]), and the documents submitted do not conclusively establish that this particular outstanding issueof fact was ever dispositively determined (see generally Teitelbaum Holdings v Gold, 48 NY2d51, 55-56 [1979]; Baumis v General Motors Corp., 102 AD2d 961, 962-963 [1984]).Accordingly, that branch of the defendant's motion which was pursuant to CPLR 3211 (a) (1) todismiss the cause of action sounding in legal malpractice based on documentary evidence should havebeen denied (see Thompsen v Baier, 84 AD3d at 1063; Guayara v Harry I. Katz,P.C., 83 AD3d at 663).
The Supreme Court, however, properly granted that branch of the defendant's motion which waspursuant to CPLR 3211 (a) (7) to dismiss the cause of action to recover damages for breach ofcontract. This cause of action was duplicative of the legal malpractice cause of action since it arosefrom the same facts, and did not seek distinct and different damages (see Alizio v Feldman, 82AD3d at 805; Conklin v Owen, 72AD3d 1006, 1007 [2010]; Sitar vSitar, 50 AD3d 667, 670 [2008];Town of Wallkill v Rosenstein, 40 AD3d 972, 974 [2007]). Mastro, J.P., Eng, Belen andHall, JJ., concur.