Plaintiff hires attorneys to file a disability claim.  Claim is denied.  Plaintiff sues attorneys on the theory that they failed to file important proofs of his disability.  Attorneys move to dismiss.  Outcome?  Motion granted and then reversed on appeal.  Is this just another reflexive dismissal of an unloved legal malpractice case?

Biro v Roth  2014 NY Slip Op 06790  Decided on October 8, 2014  Appellate Division, Second Department is another example of the AD applying the rules to pre-discovery motions to dismiss legal malpractice cases.

"The plaintiff commenced this action against the defendants, alleging a single cause of action sounding in legal malpractice. The defendants represented the plaintiff in connection with an application by which he sought disability retirement benefits in connection with his employment as a corrections officer with the New York State Department of Correctional Services (now known as the New York State Department of Corrections and Community Supervision). The complaint alleged, inter alia, that the defendants failed to incorporate certain documentary evidence of his disability into his application, and that their failure to do so was the proximate cause of his failing to secure the benefits he sought. Prior to answering the complaint, the defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). The Supreme Court denied that branch of the motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7), determining that the plaintiff stated a cause of action, but granted that branch of the motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1).

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) on the ground that a defense is founded on documentary evidence "may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Rodolico v Rubin & Licatesi, P.C., 114 AD3d 923; Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d 587; Siracusa v Sager, 105 AD3d 937). Here, in their motion to dismiss, the defendants argued that they included all relevant documentation to support the plaintiff’s application for disability retirement benefits. However, the evidence submitted by the defendants, including a doctor’s report stating that the plaintiff was able to return to full duty, either did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) or failed to utterly [*2]refute the plaintiff’s allegations of malpractice or conclusively establish a defense as a matter of law (see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713; Fontanetta v John Doe 1, 73 AD3d 78, 84-85). A party seeking relief pursuant to CPLR 3211(a)(1) on the ground that its defense is founded upon documentary evidence " has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim’" (Flushing Sav. Bank, FSB v Siunykalimi, 94 AD3d 807, 808, quoting Mazur Bros. Realty, LLC v State of New York, 59 AD3d 401, 402; see Leon v Martinez, 84 NY2d 83, 88; Camisa v Papaleo, 93 AD3d 623; Makris v Darus-Salaam Masjid, N.Y., Inc., 91 AD3d 729). Here, the defendants failed to meet their burden. Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was to dismiss the complaint pursuant CPLR 3211(a)(1)."