| Gaskin v Harris |
| 2012 NY Slip Op 06123 [98 AD3d 941] |
| September 12, 2012 |
| Appellate Division, Second Department |
| Eleanor Gaskin, Appellant, v Richard T. Harris,Respondent. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Diane P. Whitfield and ScottE. Kossove of counsel), for respondent.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from anorder of the Supreme Court, Kings County (Vaughan, J.), dated March 31, 2011, which deniedher motion, in effect, for summary judgment on the complaint, and granted the defendant's crossmotion 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 cross motion which was pursuant to CPLR 3211 (a) (1) and (7) todismiss the cause of action alleging legal malpractice, and substituting therefor a provisiondenying that branch of the cross motion; as so modified, the order is affirmed, without costs ordisbursements.
The Supreme Court properly denied the plaintiff's motion, in effect, for summary judgmenton the complaint. "A motion for summary judgment may not be made before issue is joined(CPLR 3212 [a]) and the requirement is strictly adhered to" (City of Rochester vChiarella, 65 NY2d 92, 101 [1985]). Here, the plaintiff moved, in effect, for summaryjudgment simultaneously with her commencement of this action, and, thus, before issue could bejoined. Under these circumstances, the Supreme Court was powerless to grant summaryjudgment (see Union Turnpike Assoc.,LLC v Getty Realty Corp., 27 AD3d 725, 727-728 [2006]; Chakir v Dime Sav. Bankof N.Y., 234 AD2d 577 [1996]; seealso Shaibani v Soraya, 71 AD3d 1121 [2010]).
However, the Supreme Court should not have granted that branch of the defendant's crossmotion which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the cause of action alleginglegal malpractice. To recover damages for legal malpractice, a plaintiff is required to show thatthe defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonlypossessed by a member of the legal profession, and that the attorney's breach of this duty causedthe plaintiff to suffer actual and ascertainable damages (see Dombrowski v Bulson, 19 NY3d 347, 350 [2012]; Rudolf v Shayne, Dachs, Stanisci, Corker& Sauer, 8 NY3d 438, 442 [2007]; McCoy v Feinman, 99 NY2d 295, 301-302[2002]; Gershkovich v Miller, Rosado &Algios, LLP, 96 AD3d 716, 717 [2012]). When determining a motion to dismisspursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must accept thefacts alleged in the pleading as true, accord the plaintiff the benefit of every possible [*2]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 314,326 [2002]; Leon v Martinez, 84 NY2d 83, 87 [1994]; Marom v Anselmo, 90 AD3d 622,623 [2011]), and "may freely consider affidavits submitted by the plaintiff to remedy any defectsin the complaint" (Leon v Martinez, 84 NY2d at 88; see Berman v Christ Apostolic Church Intl. Miracle Ctr., Inc., 87 AD3d1094, 1096-1097 [2011]; Kopelowitz & Co., Inc. v Mann, 83 AD3d 793, 797 [2011]).Further, a motion pursuant to CPLR 3211 (a) (1) may be granted "only where the documentaryevidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as amatter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; see Leon vMartinez, 84 NY2d at 88; Robertson v Wells, 95 AD3d 862, 863 [2012]; Magnus v Sklover, 95 AD3d 837,837 [2012]).
Applying these principles here, the complaint, as amplified by the affidavits submitted by theplaintiff, adequately states a cause of action to recover damages for legal malpractice. Theplaintiff alleges that the defendant negligently advised her to seek workers' compensationbenefits for injuries sustained in the course of her employment as a substitute teacher, when heshould have known, as an attorney specializing in this area, that New York City teachers andsubstitute teachers are not covered by the Workers' Compensation Law. She further claims thatthe defendant advised her to pursue a baseless workers' compensation claim instead of litigation,failed to advise her of the deadline for filing a notice of claim, and counseled her againstaccepting a mediator's recommended settlement that would have afforded her somecompensation for her injuries. Although the documentary evidence submitted by the defendantestablishes that he promptly filed a workers' compensation claim on the plaintiff's behalf, andthat the claim was denied on the ground that New York City teachers, including substituteteachers, are not covered by the Workers' Compensation Law, this evidence does notconclusively establish a defense to the plaintiff's asserted malpractice claims. Accordingly, theSupreme Court should have denied that branch of the defendant's cross motion which waspursuant to CPLR 3211 (a) (1) and (7) to dismiss the cause of action alleging legal malpractice(see Magnus v Sklover, 95 AD3d at 837; Ofman v Katz, 89 AD3d 909, 910 [2011]; Thompsen v Baier, 84 AD3d1062, 1063 [2011]).
The Supreme Court, however, properly granted that branch of the defendant's cross motionwhich was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the cause of action alleging breachof contract, since that claim is duplicative of the legal malpractice claim (see Ofman vKatz, 89 AD3d at 911; Alizio vFeldman, 82 AD3d 804, 805 [2011]; Conklin v Owen, 72 AD3d 1006, 1007 [2010]; see also Scartozzi v Potruch, 72 AD3d787, 789 [2010]; Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d561, 562 [2003]). The Supreme Court also properly granted that branch of the defendant's crossmotion which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the plaintiff's demand torecover damages for emotional distress, since damages in a legal malpractice action are limited topecuniary loss (see Dombrowski v Bulson, 19 NY3d at 351; Guiles v Simser, 35 AD3d 1054,1056 [2006]; Wolkstein v Morgenstern, 275 AD2d 635, 637 [2000]). Rivera, J.P., Florio,Eng and Cohen, JJ., concur.