| Green v Gross & Levin, LLP |
| 2012 NY Slip Op 09027 [101 AD3d 1079] |
| December 26, 2012 |
| Appellate Division, Second Department |
| Angela Green, Appellant, v Gross and Levin, LLP, et al.,Respondents. |
—[*1] Kaufman Borgeest & Ryan, LLP, New York, N.Y. (Jonathan B. Bruno and Alex N.Niederman of counsel), for respondents.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from anorder of the Supreme Court, Queens County (Agate, J.), entered June 16, 2010, which granted thedefendants' motion pursuant to CPLR 3211 (a) to dismiss the complaint.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the defendants' motion which were pursuant to CPLR 3211 (a) to dismiss thesecond, fifth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth causes of action insofar asasserted against the defendants Gross and Levin, LLP, and Lawrence Gross, and the eighth causeof action, asserted against the defendant Gross and Levin, LLP, and substituting thereforprovisions denying those branches of the motion; as so modified, the order is affirmed, withoutcosts or disbursements.
The plaintiff, appearing pro se, commenced this action against Gross and Levin, LLP(hereinafter G&L), as well as Lawrence Gross and Nishani Naidoo, a partner and an associateattorney, respectively, in G&L, alleging that they committed legal malpractice in connection withtheir representation of her in a partition action.
The Supreme Court correctly concluded that personal jurisdiction over Naidoo was neverobtained, as the plaintiff failed to present prima facie proof that Naidoo was served with processin accordance with CPLR 308. Therefore, the Supreme Court properly granted that branch of thedefendants' motion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar asasserted against Naidoo, based on lack of personal jurisdiction.
However, the Supreme Court should not have granted that branch of the defendants' motionwhich was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted againstG&L, based on lack of personal jurisdiction. The plaintiff presented prima facie proof thatservice was effected upon Gross, a partner in G&L, by personally delivering a copy of thesummons with notice to a paralegal at the office of G&L, which was Gross's actual place ofbusiness, and then mailing a copy of it to Gross at G&L in an envelope marked personal andconfidential and not [*2]indicating that the communication wasfrom an attorney or concerned a legal action. Contrary to the conclusion of the Supreme Court,this service was sufficient to confer personal jurisdiction over G&L, which is a limited liabilitypartnership, since service was properly effected upon one of G&L's partners (see CPLR308 [2]; 310-a; Maine v Jay St. Realty Assoc., 187 Misc 2d 376, 379 [2001];Atkinson v D.M.A. Enters., 159 Misc 2d 476, 479-480 [1993]; see also Foy v 1120Ave. of the Ams. Assoc., 223 AD2d 232, 236-238 [1996]). Although G&L alleges that onlyone copy of the summons with notice was left with the paralegal, this was not a jurisdictionaldefect, since such notice was reasonably calculated, under all the circumstances, to apprise Grossand, hence, G&L, of the pendency of the action and afford G&L an opportunity to present itsobjections and defenses (see Raschel v Rish, 69 NY2d 694, 696 [1986]; see alsoBrown v Sagamore Hotel, 184 AD2d 47 [1992]; Matter of T.E.A. Mar. AutomotiveCorp. v Scaduto, 181 AD2d 776 [1992]).
Although lack of personal jurisdiction was not a proper basis for dismissal of the complaintagainst G&L, and the Supreme Court incorrectly determined that the first, second, fourth, fifth,ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth causes of action did not state a cause ofaction against Gross, those defendants correctly contend that alternative grounds for affirmanceexist with respect to certain of those causes of action.
"On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, the court must afford the pleading a liberal construction, accept all facts asalleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]). "Amotion pursuant to CPLR 3211 (a) (1) to dismiss the complaint on the ground that the action isbarred by documentary evidence may be granted only where the documentary evidence utterlyrefutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matterof law" (Mendelovitz v Cohen, 37AD3d 670, 670 [2007]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314,326 [2002]).
G&L and Gross assert that CPLR 3211 (a) (1) provides an alternative ground for theaffirmance of so much of the order as granted those branches of their motion which were todismiss the first and fourth causes of action insofar as asserted against both of them, and theseventh cause of action, which was only asserted against G&L (see Parochial Bus Sys. vBoard of Educ. of City of N.Y., 60 NY2d 539, 544-545 [1983]). They further assert thatCPLR 3211 (a) (7) provides an alternative ground for the affirmance of so much of the order asgranted those branches of their motion which were to dismiss the third cause of action insofar asasserted against both of them, and the sixth cause of action, which was only asserted againstG&L (see id.). We agree.
Here, the documentary evidence conclusively established a defense as a matter of law to theallegations of legal malpractice, as set forth in the first and fourth causes of action insofar asasserted against G&L and Gross, and the seventh cause of action, which was only assertedagainst G&L. In addition, the third cause of action fails to state a cause of action to recoverdamages for legal malpractice insofar as asserted against both G&L and Gross, and the sixthcause of action, which was only asserted against G&L, fails to state a cause of action to recoverdamages for legal malpractice against it. However, the documentary evidence did notconclusively establish a defense as a matter of law as to the remaining causes of action.Moreover, the allegations set forth in the eighth cause of action state a cognizable cause of actionagainst G&L, and the allegations set forth in the remaining causes of action state cognizablecauses of action against both G&L and Gross.
The parties' remaining contentions are without merit. Eng, P.J., Balkin, Leventhal andChambers, JJ., concur.