Opinion
Submitted January 4, 2000
February 17, 2000
In an action to recover damages for legal malpractice, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), entered February 4, 1999, as denied his motion to dismiss the complaint for failure to state a cause of action.
Anthony J. DeCintio, Yonkers, N.Y., appellant pro se.
Phillips, Weiner Quinn, Lindenhurst, N.Y. (James F. Quinn of counsel), for respondent.
DAVID S. RITTER, J.P., MYRIAM J. ALTMAN, GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
In reviewing a complaint to determine if it states a cause of action, "the challenged pleading is to be construed liberally and `is deemed to allege whatever cause of action can be implied from its statement by fair and reasonable intendment'" (Shields v. School of Law of Hofstra Univ., 77 A.D.2d 867, 868, quoting Lupinski v. Village of Ilion, 59 A.D.2d 1050; see also, 219 Broadway Corp. v. Alexander's, Inc., 46 N.Y.2d 506, 509). Moreover, it is well settled that when a motion to dismiss has not been converted to a motion for summary judgment, "affidavits may be used [to] freely * * * preserve inartfully pleaded, but potentially meritorious claims" (Rovello v. Orofino Realty Co. 40 N.Y.2d 633, 635-636).
Contrary to the defendant's contention, "[g]iving the pleadings `their most favorable intendment'" (Scheller v. Martabano, 177 A.D.2d 690, quoting Arrington v. New York Times Co., 55 N.Y.2d 433, 442, cert denied 459 U.S. 1146), the plaintiff's cause of action to recover damages for legal malpractice was sufficiently stated (see, Mecca v. Shang, 258 A.D.2d 569; Sopesis Constr. v. Solomon, 199 A.D.2d 491; Scheller v. Martabano, supra). Accordingly, the Supreme Court properly declined to dismiss the complaint.