Documentary Evidence and CPLR 3211...What is Allowed?

Daughter works for a law firm, and hears of a financial opportunity. She gets her parents involved, and surprise...the loans do not work out! They sue the law firm for legal malpractice. Rodolico v Rubin & Licatesi, P.C. 2013 NY Slip Op 08068 [112 AD3d 608] December 4, 2013
Appellate Division, Second Department stands for two things. We discussed standing yesterday. The second is that there are a limited number of "documents" that can be utilized for a CPLR 3211(a)(1) motion.

"The Supreme Court also properly denied the branch of the defendants' motion which was to dismiss the sixth cause of action, alleging legal malpractice, pursuant to CPLR 3211 (a) (1). The evidence submitted in support of a motion pursuant to CPLR 3211 (a) (1) to dismiss a complaint on the ground that a defense is founded on documentary evidence "must be documentary or the motion must be denied" (Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [2012], quoting Fontanetta v John Doe 1, 73 AD3d 78, 84 [2010] [internal quotation marks omitted]). " ' [N]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211 (a) (1)' " (Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714, quoting Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997 [2010]; see Suchmacher v Manana Grocery, 73 AD3d 1017 [2010]; Fontanetta v John Doe 1, 73 AD3d at 86).

Here, the only evidence submitted by the defendants that pertained to the legal malpractice cause of action were affidavits. Accordingly, since the defendants failed to support the branch of their motion seeking to dismiss the legal malpractice cause of action pursuant to CPLR 3211 (a) (1) with "documentary" evidence, it was properly denied (see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714; Integrated Constr. Servs., Inc. v Scottsdale Ins. Co., 82 AD3d 1160, 1163 [2011]; Fontanetta v John Doe 1, 73 AD3d at 86)."

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