Opinion
No. 2023-05993 Index No. 531943/21
11-27-2024
Aaron Berger, respondent, v. Lewis Johs Avallone Aviles, LLP, defendant, Marc Wohlgemuth & Associates, P.C., appellant.
Lewis Brisbois Bisgaard & Smith, LLP, New York, NY (Jamie R. Wozman, Sam Cohen, and Mark K. Anesh of counsel), for appellant. Herrick, Feinstein, LLP, New York, NY (Elizabeth A. Mancuso, David King, and Avery Mehlman of counsel), for respondent.
Lewis Brisbois Bisgaard & Smith, LLP, New York, NY (Jamie R. Wozman, Sam Cohen, and Mark K. Anesh of counsel), for appellant.
Herrick, Feinstein, LLP, New York, NY (Elizabeth A. Mancuso, David King, and Avery Mehlman of counsel), for respondent.
COLLEEN D. DUFFY, J.P., FRANCESCA E. CONNOLLY, PAUL WOOTEN, LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to recover damages for legal malpractice, the defendant Marc Wohlgemuth & Associates, P.C., appeals from an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated April 14, 2023. The order denied that defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
In December 2021, the plaintiff commenced this action to recover damages for legal malpractice against the defendant Marc Wohlgemuth & Associates, P.C. (hereinafter Wohlgemuth), and another defendant, in connection with Wohlgemuth's legal representation of him as a defendant in a personal injury action. In November 2022, Wohlgemuth moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against it. In an order dated April 14, 2023, the Supreme Court denied Wohlgemuth's motion. Wohlgemuth appeals.
"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Georgica Bldrs., Ltd. v 136 Bishops Lane, LLC, 175 A.D.3d 610, 611 [internal quotation marks omitted]; see Leon v Martinez, 84 N.Y.2d 83, 87-88). Further, "[o]n a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Georgica Bldrs., Ltd. v 136 Bishops Lane, LLC, 175 A.D.3d at 611; see Leon v Martinez, 84 N.Y.2d at 87).
Here, accepting the allegations in the complaint as true and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 N.Y.2d at 87), the complaint sufficiently stated a cause of action to recover damages for legal malpractice. Contrary to Wohlgemuth's contention, "'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'" (Shan Yun Lin v Lau, 210 A.D.3d 817, 818, quoting Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 39). Further, "'a legal malpractice defendant seeking dismissal pursuant to CPLR 3211(a)(1) must tender documentary evidence conclusively establishing that the scope of its representation did not include matters relating to the alleged malpractice'" (id., quoting Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d at 39). Here, Wohlgemuth failed to submit documentary evidence sufficient to make that showing or to otherwise submit documentary evidence utterly refuting the plaintiff's allegations or conclusively establishing a defense as a matter of law (see Ki Kuo Zhang v Lau, 210 A.D.3d 829, 831; Shan Yun Lin v Lau, 210 A.D.3d at 818).
Accordingly, the Supreme Court properly denied Wohlgemuth's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it.
DUFFY, J.P., CONNOLLY, WOOTEN and VENTURA, JJ., concur.