| Rodolico v Rubin & Licatesi, P.C. |
| 2014 NY Slip Op 01308 [114 AD3d 923] |
| February 26, 2014 |
| Appellate Division, Second Department |
| Anthony Rodolico, Respondent, v Rubin &Licatesi, P.C., et al., Appellants. |
—[*1]
In an action, inter alia, to recover damages for legal malpractice, the defendantsappeal, as limited by their brief, from so much of an order of the Supreme Court, SuffolkCounty (Jones, Jr., J.), entered August 31, 2012, as denied those branches of their crossmotion which were pursuant to CPLR 3211 (a) to dismiss the complaint.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
The plaintiff's sister worked for the defendant law firm, in which the individualdefendants are partners. During his sister's employment, the plaintiff came to learn of aninvestment opportunity being organized by the defendants, which involved providinghigh interest, short-term loans for the development of real estate. The plaintiff and hiswife decided to participate. Two bank checks, one of which was purchased by theplaintiff's wife and bore only her name, were forwarded to the defendants for the purposeof making two loans. When these two loans were not repaid in full, the plaintiffcommenced this action seeking to recover from the defendants the money that he wasowed, claiming that the defendants effectively borrowed the money from him (first andsecond causes of action). In the alternative, the plaintiff sought damages for legalmalpractice (third cause of action). The plaintiff made a pre-discovery motion forsummary judgment on the complaint, and the defendants cross-moved, inter alia, todismiss the second cause of action pursuant to CPLR 3211 (a) (3), for lack of standing,and to dismiss the complaint pursuant to CPLR 3211 (a) (1), based upon documentaryevidence. The Supreme Court denied the motion and the cross motion.
In support of that branch of their cross motion which was to dismiss the second causeof action for lack of standing, the defendants argued that the plaintiff had no interest inthe loaned funds because the funds were provided by his wife. However, the plaintiffestablished, through his affidavit, that the funds provided for the subject loan belonged toboth him and his wife (seeRodolico v Rubin & Licatesi, P.C., 112 AD3d 608, 609-610 [2013]). Thedefendants presented no evidence to the contrary. The plaintiff, therefore, had standing toseek the return of the funds (see id.; see generally Wells Fargo Bank Minn., N.A. v Mastropaolo, 42AD3d 239, 242 [2007]), and the Supreme Court properly denied that branch of thedefendants' cross motion which was to dismiss the second cause of action for lack ofstanding.[*2]
The Supreme Court also properly denied thatbranch of the defendants' cross motion which was to dismiss the complaint pursuant toCPLR 3211 (a) (1). A motion pursuant to CPLR 3211 (a) (1) to dismiss a complaint onthe ground that a defense is founded on documentary evidence "may be appropriatelygranted only where the documentary evidence utterly refutes [the] plaintiff's factualallegations, conclusively establishing a defense as a matter of law" (Goshen v MutualLife Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Parkoff v Stavsky, 109 AD3d 646 [2013]; Benson v Deutsche Bank Natl.Trust, Inc., 109 AD3d 495 [2013]). Further, the evidence submitted in supportof a motion pursuant to CPLR 3211 (a) (1) to dismiss a complaint on the ground that adefense is founded on documentary evidence "must be documentary or the motion mustbe denied" (Cives Corp. vGeorge A. Fuller Co., Inc., 97 AD3d 713, 714 [2012], quoting Fontanetta v John Doe 1, 73AD3d 78, 84 [2010] [internal quotation marks omitted]; see Rodolico v Rubin &Licatesi, P.C., 112 AD3d at 610). " '[N]either affidavits, deposition testimony, norletters are considered documentary evidence within the intendment of CPLR 3211 (a) (1)'" (Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714, quoting Granada Condominium III Assn. vPalomino, 78 AD3d 996, 997 [2010]; see Rodolico v Rubin & Licatesi,P.C., 112 AD3d at 610; Suchmacher v Manana Grocery, 73 AD3d 1017 [2010];Fontanetta v John Doe 1, 73 AD3d at 86).
Here, with respect to the first and second causes of action, the defendants submittedtwo checks that the plaintiff and his wife provided for the investments, which werewritten to the defendants' IOLA account. Those checks do not "utterly refute" theplaintiff's allegations that the defendants borrowed funds from the plaintiff and his wifeor "conclusively establish[ ] a defense as a matter of law" (Goshen v Mutual Life Ins.Co. of N.Y., 98 NY2d at 326).
The only other evidence submitted by the defendants pertaining to these causes ofaction as well as the legal malpractice cause of action was affidavits, which do notconstitute " 'documentary evidence within the intendment of CPLR 3211 (a) (1)' "(Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714, quoting GranadaCondominium III Assn. v Palomino, 78 AD3d at 997; see Rodolico v Rubin &Licatesi, P.C., 112 AD3d at 610).
Accordingly, that branch of the defendants' cross motion which was to dismiss thecomplaint pursuant to CPLR 3211 (a) (1) was properly denied (see Goshen v MutualLife Ins. Co. of N.Y., 98 NY2d at 326; Rodolico v Rubin & Licatesi, P.C.,112 AD3d at 610; Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714; Integrated Constr. Servs., Inc. vScottsdale Ins. Co., 82 AD3d 1160, 1163 [2011]; Fontanetta v John Doe1, 73 AD3d at 86).
The defendants' remaining contention is not properly before this Court. Skelos, J.P.,Dillon, Hall and Roman, JJ., concur.