When Documentary Evidence is Anything But Conclusive
Sometimes, the world of legal malpractice seems to be topsy-turvy in the sense that defendants point to their acts as proof that they did not commit legal malpractice, and plaintiffs point to the same act to prove the opposite. Here in Marom v Anselmo ; 2011 NY Slip Op 08914 ; Appellate Division, Second Department we see a prime example. Did defendant agree to structure a financial transaction and then do the paperwork too late, or does the late paperwork prove the opposite?
"Here, the amended complaint stated a cause of action to recover damages for legal malpractice by alleging that the defendant attorney failed to structure the plaintiff's $500,000 investment in a condominium construction project as a loan secured by a first mortgage on the condominium property as the defendant had agreed to do, and that, but for this failure, the plaintiff would have been able to recover his investment when the project was abandoned Moreover, the evidentiary proof submitted by the defendant in support of his motion, which consisted primarily of a limited liability company operating agreement signed by the plaintiff three days after the closing on the condominium property, and a loan resolution also allegedly signed after the closing, did not demonstrate that a material fact alleged in the complaint was not a fact at all, and that no significant dispute existed regarding it. Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was to dismiss the amended complaint pursuant to CPLR 3211(a)(7). "