| Comprehensive Mental Assessment & Med. Care, P.C. vGusrae Kaplan Nusbaum, PLLC |
| 2015 NY Slip Op 05904 [130 AD3d 670] |
| July 8, 2015 |
| Appellate Division, Second Department |
[*1]
| Comprehensive Mental Assessment & MedicalCare, P.C., et al., Appellants, v Gusrae Kaplan Nusbaum, PLLC,Respondent. |
Kopelvich & Feldsherova, P.C., Brooklyn, N.Y. (Galina Feldsherova ofcounsel), for appellants.
Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Mark K. Anesh andCristina R. Yannucci of counsel), for respondent.
In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appealfrom an order of the Supreme Court, Kings County (Vaughan, J.), entered July 18, 2013,which granted the defendant's motion pursuant to CPLR 3211 (a) to dismiss thecomplaint.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting those branches of the defendant's motion which were to dismiss the fourth andsixth causes of action, and substituting therefor a provision denying those branches of thedefendant's motion; as so modified, the order is affirmed, with costs to the plaintiffs.
On October 21, 2011, the plaintiffs retained the defendant law firm Gusrae KaplanNusbaum, PLLC (hereinafter GKN), to represent them in an ongoing legal malpracticeand fee dispute action, and to represent nonparty Nikolay Minkin, a liaison for theplaintiffs, in a related third-party indemnification action. GKN represented the plaintiffsand Minkin until April 24, 2012, when the Supreme Court disqualified GKN fromcontinuing that representation due to a conflict of interest in representing both theplaintiffs and Minkin.
Thereafter, the plaintiffs commenced this action against GKN to recover damagesfor, among other things, legal malpractice, breach of contract, and unjust enrichment.GKN moved pursuant to CPLR 3211 (a) to dismiss the complaint, and the SupremeCourt granted the motion.
"To succeed on a motion to dismiss based upon documentary evidence pursuant toCPLR 3211 (a) (1), the documentary evidence must utterly refute the plaintiff's factualallegations, conclusively establishing a defense as a matter of law" (Gould v Decolator, 121 AD3d845, 847 [2014]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314,326 [2002]; Leon v Martinez, 84 NY2d 83, 88 [1994]). On a motion pursuant toCPLR 3211 (a) (7) to dismiss for failure to state a cause of action, the court must acceptthe facts alleged in the complaint as true, accord the plaintiff the benefit of every possiblefavorable inference, and determine only whether the facts as alleged fit within anycognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at326; Leon v Martinez, 84 NY2d at 87-88).
[*2] Applying these principles here, the Supreme Courtproperly granted those branches of GKN's motion which were to dismiss the first,second, and third causes of action pursuant to CPLR 3211 (a) (1). The documentaryevidence submitted by GKN in support of the motion refuted the allegations of legalmalpractice set forth in the first, second, and third causes of action, and conclusivelyestablished a defense to those claims (see Green v Gross & Levin, LLP, 101 AD3d 1079,1081 [2012]; Jean-Baptiste vLaw Firm of Kenneth B. Mock, 98 AD3d 566 [2012]).
The Supreme Court erred in granting that branch of GKN's motion which waspursuant to CPLR 3211 (a) (1) to dismiss the fourth cause of action. The fourth cause ofaction sought to recover damages for legal malpractice due to GKN's allegedmisrepresentation that it had filed a motion to reargue on the plaintiffs' behalf. While thedocumentary evidence submitted by GKN in support of its motion established that such amotion was prepared, the motion itself indicates that it was not filed until after GKNceased representing the plaintiffs.
The Supreme Court also erred in granting that branch of GKN's motion which was todismiss the sixth cause of action, alleging unjust enrichment. "To prevail on a claim ofunjust enrichment, a party must show that (1) the other party was enriched, (2) at thatparty's expense, and (3) that it is against equity and good conscience to permit [the otherparty] to retain what is sought to be recovered" (Citibank, N.A. v Walker, 12 AD3d 480, 481 [2004][internal quotation marks omitted]; see Marini v Lombardo, 79 AD3d 932, 934 [2010]; Cruz v McAneney, 31 AD3d54, 59 [2006]). The complaint alleged that the plaintiffs paid GKN large sums ofmoney, which purportedly represented legal fees associated with the work beingperformed on the plaintiffs' behalf. The complaint further alleged that, in light of theallegations of, among other things, legal malpractice, GKN had been unjustly enrichedby those payments and GKN's retention of that money violated "fundamental principalsof justice, equity, and good conscience." GKN did not address those allegations on itsmotion to dismiss, other than to claim lawful entitlement to the money as fees earned andbilled. Accordingly, the Supreme Court erred in determining that the complaint failed tostate a cause of action alleging unjust enrichment (see CPLR 3211 [a] [7]).
That branch of GKN's motion which was to dismiss the seventh cause of action,alleging breach of fiduciary duty, was properly granted, albeit on the ground that it wasduplicative of the legal malpractice causes of action. The seventh cause of action isduplicative of the legal malpractice causes of action since it arises from the same facts asthose underlying the legal malpractice causes of action and does not allege distinctdamages (see Smith v KaplanBelsky Ross Bartell, LLP, 126 AD3d 877, 879 [2015]; Mackey Reed Elec., Inc. v Morrone& Assoc., P.C., 125 AD3d 822, 823 [2015]; Biberaj v Acocella, 120 AD3d1285, 1287 [2014]).
The parties' remaining contentions are without merit. Dillon, J.P., Leventhal, Cohenand Maltese, JJ., concur.