| Marom v Anselmo |
| 2011 NY Slip Op 08914 [90 AD3d 622] |
| December 6, 2011 |
| Appellate Division, Second Department |
| David Marom, Respondent, v Thomas P. Anselmo, DoingBusiness as Law Offices of Thomas P. Anselmo, Appellant. |
—[*1] Bronstein, Gewirtz & Grossman, LLC, New York, N.Y. (Edward Gewirtz of counsel), forrespondent.
In an action to recover damages for legal malpractice, the defendant appeals from an order ofthe Supreme Court, Richmond County (Maltese, J.), dated March 31, 2011, which denied hismotion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the amended complaint.
Ordered that the order is affirmed, with costs.
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]; Prestige Caterers, Inc. v Siegel, 88 AD3d 679 [2011]; Peery v United Capital Corp., 84 AD3d1201 [2011]). However, where, as here, evidentiary material is submitted and considered ona motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not convertedinto one for summary judgment, "the question becomes whether the plaintiff has a cause ofaction, not whether the plaintiff has stated one and, unless it has been shown that a material factas claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significantdispute exists regarding it, dismissal should not eventuate" (Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 810 [2011];see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275 [1977]; Cog-Net Bldg. Corp. v Travelers Indem.Co., 86 AD3d 585, 586 [2011]).
Here, the amended complaint stated a cause of action to recover damages for legalmalpractice by alleging that the defendant attorney failed to structure the plaintiff's $500,000investment in a condominium construction project as a loan secured by a first mortgage on thecondominium property as the defendant had agreed to do, and that, but for this failure, theplaintiff would have been able to recover his investment when the project was abandoned (see Garten v Shearman & SterlingLLP, 52 AD3d 207 [2008]; seegenerally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007];Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder[*2]& Steiner, 96 NY2d 300, 303-304 [2001]). Moreover, theevidentiary proof submitted by the defendant in support of his motion, which consisted primarilyof a limited liability company operating agreement signed by the plaintiff three days after theclosing on the condominium property, and a loan resolution also allegedly signed after theclosing, did not demonstrate that a material fact alleged in the complaint was not a fact at all, andthat no significant dispute existed regarding it. Accordingly, the Supreme Court properly deniedthat branch of the defendant's motion which was to dismiss the amended complaint pursuant toCPLR 3211 (a) (7).
Further, since the documentary evidence submitted by the defendant did not utterly refute theplaintiff's factual allegations, and conclusively establish a defense as a matter of law (seeGoshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Leon v Martinez, 84 NY2dat 88; Schetty v Target Corp., 88AD3d 984 [2011]; Cog-Net Bldg. Corp. v Travelers Indem. Co., 86 AD3d at585-586), the Supreme Court properly denied that branch of the defendant's motion which was todismiss the amended complaint pursuant to CPLR 3211 (a) (1) (see Kram Knarf, LLC v Djonovic, 74AD3d 628 [2010]; Garten v Shearman & Sterling LLP, 52 AD3d at 207). Dillon,J.P., Eng, Hall and Austin, JJ., concur. [Prior Case History: 2011 NY Slip Op30756(U).]