| Magnus v Sklover |
| 2012 NY Slip Op 03415 [95 AD3d 837] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Daniel Magnus, Respondent, v Alan L. Sklover et al.,Appellants. |
—[*1] Sack & Sack, New York, N.Y. (Eric Stern of counsel), for respondent.
In an action, inter alia, to recover damages for legal malpractice, the defendants appeal from(1) a transcript of the Supreme Court, Westchester County (Liebowitz, J.), dated July 6, 2011,and (2) so much of an order of the same court dated July 21, 2011, as denied those branches oftheir motion which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the cause of actionalleging legal malpractice or, in the alternative, to disqualify the plaintiff's counsel.
Ordered that the appeal from the transcript is dismissed, as no appeal lies from a transcript(see Hatem v Hatem, 49 AD3d812 [2008]); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The Supreme Court properly denied that branch of the defendants' motion which waspursuant to CPLR 3211 (a) (1) to dismiss the cause of action alleging legal malpractice based ondocumentary evidence. A motion pursuant to CPLR 3211 (a) (1) may be granted "only where thedocumentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing adefense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326[2002]). Here, the documentary evidence submitted by the defendants did not utterly refute theplaintiff's factual allegations and did not conclusively establish a defense to the legal malpracticecause of action as a matter of law (seeFinancial Servs. Veh. Trust v Saad, 72 AD3d 1019, 1020-1021 [2010]).
On a motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state acause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiffthe benefit of every possible inference, and determine only whether the facts as alleged fit withinany cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326;Leon v Martinez, 84 NY2d 83, 87 [1994]). "To state a cause of action to recover damagesfor legal malpractice, a plaintiff must allege: (1) that the attorney 'failed to exercise the ordinaryreasonable skill and knowledge commonly possessed by a member of the legal profession'; and(2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainabledamages" (Dempster v Liotti, 86AD3d 169, 176 [2011], quoting Leder v Spiegel, 9 NY3d 836, 837 [2007], cert denied sub nom.Spiegel [*2]v Rowland, 552 US 1257 [2008]).
Accepting the facts alleged in the complaint as true, and according the plaintiff the benefit ofevery possible inference, the complaint states a legally cognizable cause of action sounding inlegal malpractice (see Guayara v HarryI. Katz, P.C., 83 AD3d 661 [2011]). Thus, the Supreme Court properly denied thatbranch of the defendants' motion which was pursuant to CPLR 3211 (a) (7) to dismiss the causeof action alleging legal malpractice.
In addition, the Supreme Court properly denied that branch of the defendants' motion whichwas, in the alternative, to disqualify the plaintiff's attorneys. "The advocate-witness rulescontained in the Rules of Professional Conduct (see 22 NYCRR 1200.0) provideguidance, but are not binding authority, for the courts in determining whether a party's attorneyshould be disqualified during litigation" (Trimarco v Data Treasury Corp., 91 AD3d 756, 757 [2012]; seeS & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 440 [1987]). Rule3.7 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that, unless certainexceptions apply, "[a] lawyer shall not act as advocate before a tribunal in a matter in which thelawyer is likely to be a witness on a significant issue of fact" (id.). In order to disqualifycounsel, a party moving for disqualification must demonstrate that (1) the testimony of theopposing party's counsel is necessary to his or her case, and (2) such testimony would beprejudicial to the opposing party (see S & S Hotel Ventures Ltd. Partnership v 777 S. H.Corp., 69 NY2d at 446; Trimarco v Data Treasury Corp., 91 AD3d at 757; Daniel Gale Assoc., Inc. v George, 8AD3d 608, 609 [2004]). Here, the defendants failed to demonstrate that the anticipatedtestimony of the plaintiff's counsel was necessary to his case, or that such testimony would beprejudicial to the plaintiff. Rivera, J.P., Hall, Lott and Austin, JJ., concur.