Opinion
March 23, 1998
Appeal from the Supreme Court, Westchester County (Nastasi, J.).
Ordered that the order is affirmed, with one bill of costs payable by the appellants appearing separately and filing separate briefs.
The Supreme Court properly denied the motion of the defendants O'Connor, McGuinness, Conte, Doyle, Oleson Collins, Eugene J. McGuinness, Rocco Conte, Dennis T. Doyle, William S. Oleson, J. Peter Collins, Richard C. Oleson, Dennis L. O'Connor, Jr., William R. Watson, and Kevin M. Loftus (hereinafter the O'Connor defendants) to dismiss the action insofar as asserted against them pursuant to CPLR 3211 (a). The O'Connor defendants failed to sustain their burden of proving identity of issue in support of their claim that the instant malpractice action was barred by the doctrine of collateral estoppel ( see, Weiss v. Manfredi, 83 N.Y.2d 974). Further, the documentary evidence submitted by the O'Connor defendants did not "conclusively establish * * * a defense to the asserted claims as a matter of law" ( Leon v. Martinez, 84 N.Y.2d 83, 88) since it was rebutted by the plaintiffs. Moreover, the complaint stated a cognizable cause of action to recover damages for legal malpractice ( see, Raphael v. Clune, White Nelson, 201 A.D.2d 549; Marshall v. Nacht, 172 A.D.2d 727, 728).
Further, the Supreme Court properly denied the motion of the defendants McCullough, Goldberger Staudt, formerly known as Taylor, McCullough, Goldberger, Geoghegan Friedman, Frank S. McCullough, Jr., Charles S. Goldberger, John A. Geoghegan, James Staudt, and S. William Friedman (hereinafter the McCullough defendants) for summary judgment dismissing the complaint insofar as asserted against them. Triable issues of fact exist with respect to the extent of the McCullough defendants' involvement in or knowledge of the acts upon which the instant legal malpractice claim is predicated ( see, Zuckerman v. City of New York, 49 N.Y.2d 557).
Bracken, J. P., Krausman, Goldstein and Luciano, JJ., concur.