Summary
holding that plaintiffs were not required to alleged the specific scope of defendant law firm's agreed upon representation and that trial court properly denied motion to dismiss legal malpractice claim
Summary of this case from Superior Tech. Solutions, Inc. v. RozenholcOpinion
2012-03-15
Richard T. FITZSIMMONS, et al., etc., Plaintiffs–Respondents, v. PRYOR CASHMAN LLP, et al., Defendants–Appellants.
Pryor Cashman LLP, New York (Gideon Cashman of counsel), for appellants. Schulte Roth & Zabel LLP, New York (Ronald E. Richman of counsel), for respondents.
Pryor Cashman LLP, New York (Gideon Cashman of counsel), for appellants. Schulte Roth & Zabel LLP, New York (Ronald E. Richman of counsel), for respondents.
GONZALEZ, P.J., TOM, CATTERSON, RICHTER, ROMN, JJ.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered March 10, 2011, which, in a legal malpractice action alleging, among other things, that defendants failed to notify plaintiffs of information indicating that money may have been misappropriated from the benefit funds of which plaintiffs were trustees, denied defendants' motion to dismiss the complaint based on documentary evidence and for failure to state a cause of action, unanimously affirmed, without costs.
The court applied the correct standard and properly held that the complaint states a cause of action for legal malpractice. Plaintiff put forth sufficient detail to establish the negligence of the attorneys, that the negligence was the proximate cause of the losses sustained by the benefits funds, and actual damages to those funds ( see Leder v. Spiegel, 9 N.Y.3d 836, 837, 840 N.Y.S.2d 888, 872 N.E.2d 1194 [2007], cert. denied 552 U.S. 1257, 128 S.Ct. 1696, 170 L.Ed.2d 354 [2008]; O'Callaghan v. Brunelle, 84 A.D.3d 581, 582, 923 N.Y.S.2d 89 [2011], lv. denied 18 N.Y.3d 804, 2012 N.Y. Slip Op. 61183, 2012 WL 117988 [2012] ). Contrary to defendants' contention, plaintiffs were not required to allege the specific scope of defendants' agreed-upon legal representation nor that defendant's malpractice fell within such scope ( Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 39, 827 N.Y.S.2d 231 [2006] [“(A) legal malpractice plaintiff need not, in order to assert a viable cause of action, specifically plead that the alleged malpractice fell within the agreed scope of the defendant's representation”] ). Moreover, the documentary evidence—including Form 5500s, minutes of a 1997 Board meeting, and Department of Labor letters—does not conclusively disprove plaintiffs' allegations ( see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977] ). Plaintiffs' expert affidavit was properly considered to remedy any defects in the complaint ( see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ).
We have considered defendants' remaining contentions and find them unavailing.
The Decision and Order of this Court entered herein on November 17, 2011 is hereby recalled and vacated ( see M–5578 decided simultaneously herewith).