| Esposito v Noto |
| 2011 NY Slip Op 09265 [90 AD3d 825] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Shelly Esposito, as Executrix of John Esposito, Deceased, et al.,Respondents, v Paul J. Noto, Appellant. |
—[*1] Gallo, Feinstein & Naushtut, LLP, Rye Brook, N.Y. (Steven D. Feinstein of counsel), forrespondents.
In an action, inter alia, to recover damages for legal malpractice, the defendant appeals, aslimited by his brief, from so much of an order of the Supreme Court, Westchester County(Murphy, J.), dated January 3, 2011, as denied that branch of his motion which was pursuant toCPLR 3211 (a) (7) to dismiss the cause of action to recover damages for legal malpractice forfailure to state a cause of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
" 'Upon a motion to dismiss [for failure to state a cause of action], the sole criterion iswhether the subject pleading states a cause of action, and if, from the four corners of thecomplaint, factual allegations are discerned which, taken together, manifest any cause of actioncognizable at law, then the motion will fail' " (U.S. Bank N.A. v Stein, 81 AD3d 927, 928 [2011], quotingMaurillo v Park Slope U-Haul, 194 AD2d 142, 145 [1993]). The court must afford thepleading a liberal construction, accept the facts alleged in the pleading as true, accord theplaintiff the benefit of every possible inference, and determine only whether the facts as allegedfit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Prestige Caterers, Inc. v Siegel, 88AD3d 679 [2011]; Peery v UnitedCapital Corp., 84 AD3d 1201, 1201-1202 [2011]).
Applying those principles to the instant case, the Supreme Court properly determined that theplaintiffs stated a cause of action to recover damages for legal malpractice (see Ulico Cas. Co. v Wilson, Elser,Moskowitz, Edelman & Dicker, 56 AD3d 1, 8 [2008]; Sitar v Sitar, 50 AD3d 667,669-670 [2008]; see also Rudolf vShayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; McCoy vFeinman, 99 NY2d 295, 301-302 [2002]). Accordingly, the Supreme Court correctly deniedthat branch of the defendant's motion which was pursuant to CPLR 3211 (a) (7) to dismiss thecause of action to recover damages for legal malpractice for failure to state a cause of action.Angiolillo, J.P., Dickerson, Lott and Miller, JJ., concur.