Opinion
2011-12-20
Shelly ESPOSITO, etc., et al., respondents, v. Paul J. NOTO, appellant.
Furman Kornfeld & Brennan, LLP, New York, N.Y. (Andrew R. Jones of counsel), for appellant. Gallo, Feinstein & Naushtut, LLP, Rye Brook, N.Y. (Steven D. Feinstein of counsel), for respondents.
Furman Kornfeld & Brennan, LLP, New York, N.Y. (Andrew R. Jones of counsel), for appellant. Gallo, Feinstein & Naushtut, LLP, Rye Brook, N.Y. (Steven D. Feinstein of counsel), for respondents.
DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.
In an action, inter alia, to recover damages for legal malpractice, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Murphy, J.), dated January 3, 2011, as denied that branch of his motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for legal malpractice for failure to state a cause of action.
ORDERED that the order is affirmed insofar as appealed from, with costs.
“ ‘Upon a motion to dismiss [for failure to state a cause of action], the sole criterion is whether the subject pleading states a cause of action, and if, from the four corners of the complaint, factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, then the motion will fail’ ” ( U.S. Bank N.A. v. Stein, 81 A.D.3d 927, 928, 917 N.Y.S.2d 669, quoting Maurillo v. Park Slope U–Haul, 194 A.D.2d 142, 145, 606 N.Y.S.2d 243). The court must afford the pleading a liberal construction, accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Prestige Caterers, Inc. v. Siegel, 88 A.D.3d 679, 930 N.Y.S.2d 272; Peery v. United Capital Corp., 84 A.D.3d 1201, 1201–1202, 924 N.Y.S.2d 470).
Applying those principles to the instant case, the Supreme Court properly determined that the plaintiffs stated a cause of action to recover damages for legal malpractice ( see Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 A.D.3d 1, 8, 865 N.Y.S.2d 14; Sitar v. Sitar, 50 A.D.3d 667, 669–670, 854 N.Y.S.2d 536; see also Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714). Accordingly, the Supreme Court correctly denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for legal malpractice for failure to state a cause of action.