| Harris v Barbera |
| 2012 NY Slip Op 04973 [96 AD3d 904] |
| June 20, 2012 |
| Appellate Division, Second Department |
| Nina Harris, Appellant, v Janine A. Barbera et al.,Respondents. |
—[*1] Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Gary Petropoulos and Maria Nanis ofcounsel), for respondents.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals, aslimited by her brief, (1) from so much of an order of the Supreme Court, Suffolk County(Tanenbaum, J.), dated December 1, 2010, as granted that branch of the defendants' motionwhich was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the cause of action to recoverdamages for legal malpractice, and (2) from so much of a judgment of the same court enteredJanuary 18, 2011, as, upon the order, is in favor of the defendants and against her dismissing thecause of action to recover damages for legal malpractice. The notice of appeal from the order isdeemed also to be a notice of appeal from the judgment (see CPLR 5501 [c]).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed insofar as appealed from, on the law, that branch of thedefendants' motion which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the cause ofaction to recover damages for legal malpractice is denied, the cause of action to recover damagesfor legal malpractice is reinstated, and the order is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The defendants represented the plaintiff in an action in which she sought a divorce andancillary relief (hereinafter the underlying action). After the conclusion of the underlying action,the plaintiff commenced this action against the defendants alleging, inter alia, legal malpractice.The defendants moved, inter alia, pursuant to CPLR 3211 (a) (1) and (7) to dismiss the cause ofaction to recover damages for legal malpractice. The Supreme Court, inter alia, granted thatbranch of the [*2]motion which was pursuant to CPLR 3211 (a)(1) and (7) to dismiss the cause of action to recover damages for legal malpractice and dismissedthat cause of action.
A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only if thedocumentary evidence submitted by the moving party "utterly refutes the factual allegations ofthe complaint and conclusively establishes a defense to the claims as a matter of law" (Kopelowitz & Co., Inc. v Mann, 83AD3d 793, 796 [2011]; Fontanettav John Doe 1, 73 AD3d 78, 83 [2010]). In support of that branch of their motion whichwas to dismiss the legal malpractice cause of action pursuant to CPLR 3211 (a) (1), thedefendants submitted, among other things, a retainer agreement, or what they referred to as amatrimonial engagement agreement, executed by both the defendants and the plaintiff. Theagreement stated that there was "no assurance or guarantee of the outcome" and also that theagreement "does not include representation for . . . legal services after the Judgmentof Trial Court . . . [or] [t]he Appeal of any decisions of the Trial Court." Yet, theplaintiff, among other things, detailed in her affidavit in opposition to the motion how thedefendants failed to pursue a motion for leave to reargue or other application to modify adecision in the underlying action, submitted deficient or inappropriate proposed findings of factand conclusions of law, and failed to adequately address various necessary issues during the trial.Contrary to the defendants' contentions, the retainer agreement was insufficient documentaryevidence to dispose of those allegations. In addition, contrary to the defendants' contentions, theSupreme Court's decision in the underlying action did not utterly refute or conclusively establisha defense to the plaintiff's claim but, instead, merely disputed certain of the factual allegations(see DeStaso v Condon Resnick,LLP, 90 AD3d 809, 814 [2011]). Therefore, the Supreme Court erred in granting thatbranch of the defendants' motion which was pursuant to CPLR 3211 (a) (1) (id. at813-814).
On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7),the complaint must be construed liberally and "the sole criterion is whether the pleading states acause of action, and if from its four corners factual allegations are discerned which taken togethermanifest any cause of action cognizable at law[,] a motion for dismissal will fail"(Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Moreover, "[a] court may freelyconsider affidavits submitted by the plaintiff to remedy any defects in the complaint, and uponconsidering such an affidavit, the facts alleged therein must also be assumed to be true"(Kopelowitz & Co., Inc. v Mann, 83 AD3d at 797 [citations and internal quotation marksomitted]). Here, to the extent that the complaint was vague as to the nature of the allegations oflegal malpractice and otherwise deficient, the plaintiff, in opposition to the defendants' motion,submitted evidence, including her affidavit, in which she sufficiently remedied any pleadingdefects and delineated the grounds for her claim of legal malpractice (see Quinones v Schaap, 91 AD3d739 [2012]; Reiver v BurkhartWexler & Hirschberg, LLP, 73 AD3d 1149 [2010]; see also Gelobter v Fox, 90 AD3d 829, 830-831 [2011]).
Accordingly, the Supreme Court should have denied that branch of the defendants' motionwhich was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the cause of action to recoverdamages for legal malpractice. Rivera, J.P., Dickerson, Hall and Cohen, JJ., concur.