Carboni v Ginsberg ; 02/02/2010 2010 NYSlipOp 30256(U) Maltese, J. is an illustration of how a potential legal malpractice case underlays almost all activity within the realm of attorney representation, which is to say, everything.

Here, the question is whether plaintiff lost his employment in a wrongful manner, and after that determination, whether he has sued the attorneys within the appropriate statute of limitations time.

In a meticulous, fact specific decision, Justice Maltese writes that under CPLR 3211(a)(1) "the movant is required to demonstrate that the `documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law.’"

In this case, defendant’s documents were less than conclusive.  A stipulation did not end the question of whether a discharge from employment could still be litigated.  On the opposite side, there was inconclusive proofs of whether a named defendant continued to be an employee of the law firm on the date of the purported malpractice.

Lastly, defendants wanted to demonstrate that they did not yet represent plaintiff when his statute of limitations against the Transit Authority expired.