| Stuart v Robert L. Folks & Assoc., LLP |
| 2013 NY Slip Op 03319 [106 AD3d 808] |
| May 8, 2013 |
| Appellate Division, Second Department |
| Stan Stuart, Appellant, v Robert L. Folks &Associates, LLP, et al., Respondents. |
—[*1] Furman Kornfeld & Brennan, New York, N.Y. (A. Michael Furman and Evan W.Bolla of counsel), for respondents.
In an action to recover damages for legal malpractice and breach of contract, theplaintiff appeals from an order of the Supreme Court, Nassau County (Woodard, J.),entered May 19, 2011, which, in effect, granted the defendants' motion pursuant to CPLR3211 (a) to dismiss the complaint.
Ordered that the order is affirmed, with costs.
In a legal malpractice action, a plaintiff must show that the defendant attorney "failedto exercise the ordinary reasonable skill and knowledge commonly possessed by amember of the legal profession" and that "the attorney's breach of this professional dutycaused the plaintiff's actual damages" (McCoy v Feinman, 99 NY2d 295,301-302 [2002] [internal quotation marks omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d438, 442 [2007]; Guayara vHarry I. Katz, P.C., 83 AD3d 661, 662 [2011]; Alizio v Feldman, 82 AD3d804, 804 [2011]). To succeed on a motion to dismiss a complaint pursuant to CPLR3211 (a) (1), the documentary evidence relied on by the defendant must "conclusivelyestablish[ ] a defense to the asserted claims as a matter of law" (Leon v Martinez,84 NY2d 83, 88 [1994]; see Guayara v Harry I. Katz, P.C., 83 AD3d at 662).
Applying these standards to the instant case, the Supreme Court properly directed thedismissal of the legal malpractice cause of action. The plaintiff alleged that thedefendants negligently advised him to prosecute an underlying action despite the fact thatit was time-barred. However, the documentary evidence submitted by the defendantsestablished that they specifically advised the plaintiff about probablestatute-of-limitations problems, and that they reasonably commenced the underlyingaction despite such concern. Moreover, the documentary evidence also established thatthe underlying action was dismissed solely because the plaintiff failed to appear pro sewith new counsel in that action within the time specified by the court, after the court hadgranted the motion of Robert L. Folks & Associates, LLP, a defendant in this action, tobe relieved as counsel for the plaintiff in the underlying action.
The Supreme Court also properly directed the dismissal of the breach of contractcause of action because it was duplicative of the legal malpractice cause of action(see CPLR 3211 [a] [7]; Ofman v Ginsberg, 89 AD3d 908, 909 [2011]; Conklin v Owen, 72 AD3d1006 [2010]; Laruccia v Forchelli, Curto, Schwartz, Mineo, Carlino &Cohn, 295 AD2d 321, 322 [2002]).
The plaintiff's remaining contentions either are without merit or need not be reachedin light of our determination. Mastro, J.P., Chambers, Lott and Sgroi, JJ., concur.[Prior Case History: 2011 NY Slip Op 31386(U).]