| Sobel v Ansanelli |
| 2012 NY Slip Op 06202 [98 AD3d 1020] |
| September 19, 2012 |
| Appellate Division, Second Department |
| Christina Sobel, Individually and as Administrator of the Estate ofMary Ellen Malone, Deceased, Respondent, v Vincent W. Ansanelli et al.,Appellants. |
—[*1] David Ullman, P.C., Garden City, N.Y., for respondent.
In an action, inter alia, in effect, to recover damages for legal malpractice, the defendantsappeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County(Kramer, J.), dated July 18, 2011, as, in effect, granted that branch of their motion which was todismiss the sixth cause of action as time-barred pursuant to CPLR 3211 (a) (5) only to the extentof directing dismissal of so much of that cause of action as was predicated upon alleged acts oromissions occurring more than three years prior to the commencement of the action, and deniedthose branches of their motion which were to dismiss the complaint pursuant to CPLR 3211 (a)(1) and (7).
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the motion which were to dismiss the fourth cause of action pursuant to CPLR3211 (a) (1), and the third, fifth, and seventh causes of action pursuant to CPLR 3211 (a) (7), andsubstituting therefor provisions granting those branches of the motion; as so modified, the orderis affirmed insofar as appealed from, without costs or disbursements.
In August 2005 the decedent, Mary Ellen Malone, retained the defendant Vincent W.Ansanelli and the defendant law firm, Ansanelli, Kugler & Svendsen, LLP, to perform estateplanning services, including asset protection, the preparation and filing of an application forMedicaid benefits, and the transfer of the decedent's cooperative apartment to her daughter,Christina Sobel. At the time the decedent retained the defendants, the alleged total value of herassets was approximately $190,000, and she allegedly had debts of approximately $60,000. Morethan two years after the decedent's death, by summons and complaint filed on February 3, 2011,Sobel commenced this action asserting six causes of action alleging, in effect, legal malpractice,breach of contract, breach of fiduciary duty, fraud, and duress. The plaintiff's breach of fiduciaryduty claims, set forth under the first and second causes of action, were premised upon allegationsthat the defendants had charged excessive legal fees totaling over $44,000 for the protection ofthe decedent's relatively modest estate.
Prior to joinder of issue, the defendants moved to dismiss the complaint pursuant to CPLR3211 (a) (1), (5) and (7). In support of their motion, they submitted, inter alia, copies of invoicesallegedly sent to the plaintiff, and argued that these invoices established a defense to some [*2]of the plaintiff's claims because she had ratified them by retainingthem without objection, making partial payment, and signing an agreement promising to pay thebalance due. The defendants also submitted a document from the City of New York HumanResources Administration dated July 30, 2008, which indicated that the decedent's application forMedicaid benefits had been retroactively granted from November 1, 2006, to the date of herdeath on April 28, 2008. The defendants additionally contended that none of the plaintiff's claimsstated a cause of action, and that the plaintiff's legal malpractice claim was barred by the statuteof limitations.
In opposition, the plaintiff disputed the authenticity of the invoices submitted in support ofthe motion, asserting that they differed in format from those the defendants had provided to herbecause they included breakdowns of the hours expended on particular tasks. She further arguedthat her claims were not time-barred because the defendants' representation continued at leastuntil February 3, 2008, when the defendants issued their final invoice. The plaintiff also servedan amended complaint as of right pursuant to CPLR 3025 (a), which was substantially similar tothe original complaint except for the addition of a seventh cause of action alleging that theinvoices the defendants had submitted to the court in support of their motion were fraudulent.The defendants thereafter submitted additional papers on the motion, seeking dismissal of theamended complaint.
The Supreme Court, among other things, in effect, granted that branch of the defendants'motion which was to dismiss the sixth cause of action alleging, in effect, legal malpractice astime-barred pursuant to CPLR 3211 (a) (5) only to the extent of directing dismissal of so much ofthat cause of action as was predicated upon alleged acts or omissions occurring more than threeyears prior to the commencement of the action, and denied those branches of their motion whichwere to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7).
Initially, we note that since the defendants elected to apply their motion to dismiss to theamended complaint which superseded the original complaint, we consider the motion as directedagainst the amended complaint (seeUnion State Bank v Weiss, 65 AD3d 584, 585 [2009]; Ferguson v Sherman Sq. Realty Corp.,30 AD3d 288 [2006]; Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 38[1998]; David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B,CPLR C3211:65).
Contrary to the defendants' contention, the Supreme Court properly denied those branches oftheir motion which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the first and secondcauses of action alleging, in effect, breach of fiduciary duty premised on the theory that thedefendants charged excessive legal fees. A motion to dismiss pursuant to CPLR 3211 (a) (1) maybe granted "only where the documentary evidence utterly refutes plaintiff's factual allegations,conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Harris v Barbera, 96 AD3d 904[2012]; Parekh v Cain, 96 AD3d812 [2012]). To qualify as documentary evidence, printed materials "must be unambiguousand of undisputed authenticity" (Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]; see Flushing Sav. Bank, FSB vSiunykalimi, 94 AD3d 807, 808 [2012]; Yeshiva Chasdei Torah v Dell Equity, LLC, 90 AD3d 746, 746-747[2011]). Further, on a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a causeof action, the court must accept the facts alleged in the pleading as true, accord the plaintiff thebenefit of every possible favorable inference, and determine only whether the facts as alleged fitwithin any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2dat 326; Leon v Martinez, 84 NY2d at 87).
Here, the invoices which the defendants submitted in support of their position that theplaintiff ratified the legal fees charged for services to the decedent were of disputed authenticityand did not constitute "documentary evidence" within the meaning of CPLR 3211 (a) (1) (see Reiver v Burkhart Wexler &Hirschberg, LLP, 73 AD3d 1149, 1150 [2010]; see also Parekh v Cain, 96 AD3d 812 [2012]; Granada Condominium III Assn. vPalomino, 78 AD3d 996, 997 [2010]). In any event, the invoices did not conclusivelyestablish, as a matter of law, a defense to the first and second causes of action (see Reiver vBurkhart Wexler & Hirschberg, LLP, 73 AD3d at 1150-1151; see also Cannon v FirstNatl. Bank of E. Islip, 98 AD2d 704, 705 [1983], affd 62 NY2d 1003 [1984]).Furthermore, the factual allegations in the first and second causes of action are sufficient to statea cause of action sounding in breach of [*3]fiduciary duty (seeReiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d at 1150). Thus, dismissal of the firstand second causes of action pursuant to CPLR 3211 (a) (1) and (7) was not warranted.
The Supreme Court properly, in effect, granted that branch of the defendants' motion whichwas to dismiss the sixth cause of action alleging, in effect, legal malpractice as time-barredpursuant to CPLR 3211 (a) (5) only to the extent of directing dismissal of so much of that causeof action as was predicated upon alleged acts or omissions occurring more than three years priorto the commencement of the action. Dismissal of the sixth cause of action in its entirety astime-barred was not warranted because, to the extent that the plaintiff's legal malpractice claim ispredicated upon the defendants' alleged failure to protect the value of estate assets consisting ofthe cooperative apartment, the defendants' own submissions raise an issue of fact as to whetherthe continuous representation doctrine tolled the statute of limitations until February 3, 2008, thedate of the final invoice for legal services performed in connection with the sale of the apartment(see Golub v Baer, Marks & Upham, 172 AD2d 489, 490 [1991]; see also Macaluso v Del Col, 95 AD3d959, 960 [2012]; Putnam CountyTemple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d 1118, 1120 [2011]; Howish v Perrotta, 84 AD3d 1312,1313 [2011]). Moreover, accepting the facts alleged in the amended complaint as true andaccording the plaintiff the benefit of every possible inference, the plaintiff's allegation that thedefendants negligently failed to protect the cooperative apartment states a legally cognizableclaim to recover damages for legal malpractice (see Magnus v Sklover, 95 AD3d 837 [2012]; Esposito v Noto, 90 AD3d 825[2011]). Accordingly, the Supreme Court also properly denied that branch of the defendants'motion which was to dismiss the sixth cause of action pursuant to CPLR 3211 (a) (7).
However, the Supreme Court should have granted that branch of the defendants' motionwhich was to dismiss the fourth cause of action alleging breach of contract pursuant to CPLR3211 (a) (1). The gravamen of this claim is that the defendants "failed in their contractualobligation" to obtain Medicaid benefits, and this allegation is refuted by the documentary proofthat the decedent's application for Medicaid benefits was indeed approved.
The Supreme Court also should have granted that branch of the defendants' motion whichwas to dismiss the third and seventh causes of action alleging fraud pursuant to CPLR 3211 (a)(7). A cause of action alleging fraud requires a plaintiff to establish a misrepresentation oromission of material fact which the defendant knew was false, that the misrepresentation ormaterial omission was made to induce the plaintiff's reliance, the plaintiff's justifiable reliance onthe misrepresentation or material omission, and a resulting injury (see Lama Holding Co. vSmith Barney, 88 NY2d 413, 421 [1996]; Robertson v Wells, 95 AD3d 862 [2012]; Orchid Constr. Corp. v Gottbetter, 89AD3d 708, 710 [2011]). The gravamen of the plaintiff's third cause of action is that thedefendants presented her with invoices from which she was unable to determine the specificwork she was being billed for, who did the work, and how long the work took. However, thereare no facts alleged under the third cause of action from which it can be inferred that theomission of this information was made to induce the plaintiff's reliance on the veracity of theinvoices and the value of the legal services performed. Furthermore, the seventh cause of action,which, in essence, challenges the authenticity of invoices submitted by the defendants in supportof their motion, fails to state the elements of a fraud claim.
The Supreme Court should have granted that branch of the defendants' motion which was todismiss the fifth cause of action alleging duress pursuant to CPLR 3211 (a) (7), since theplaintiff's allegations that she was pressured to use and pledge her own funds to pay thedefendants' invoices are insufficient to state a cause of action to recover damages for duress (see Duane Morris LLP v Astor HoldingsInc., 61 AD3d 418, 419 [2009]; Morad v Morad, 27 AD3d 626, 627 [2006]).
The defendants' remaining contentions either are without merit or have been renderedacademic in light of our determination. Balkin, J.P., Eng, Leventhal and Chambers, JJ., concur.