Lawfirm signs on to represent plaintiffs and a “liaison for plaintiffs” in an ongoing legal malpractice and fee dispute action, and do so for about 6 months until they are disqualified due to a “conflict of interest in representing both the plaintiffs” and the liaison.  Plaintiffs then go on to sue Lawfirm for legal malpractice and unjust enrichment.

This small quote from the case indicates that this saga had a long history.  Plaintiffs had an original case which they lost.  They then sued their attorneys because of that loss.  Their attorneys left the case for some reason.  Lawfirm took over, and were then disqualified.  Other attorneys took over and this case went badly.  Plaintiffs then sued the lawfirm, in a serial legal malpractice case.

Back to our case.  Comprehensive Mental Assessment & Med. Care, P.C. v Gusrae Kaplan Nusbaum, PLLC  2015 NY Slip Op 05904  Decided on July 8, 2015  Appellate Division, Second Department indicates that the Lawfirm won dismissal of the legal malpractice claims, for the most part.  “”To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Gould v Decolator, 121 AD3d 845, 847; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 88). On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable 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 NY2d at 326; Leon v Martinez, 84 NY2d at 87-88).

Applying these principles here, the Supreme Court properly granted those branches of GKN’s motion which were to dismiss the first, second, and third causes of action pursuant to CPLR 3211(a)(1). The documentary evidence submitted by GKN in support of the motion refuted the allegations of legal malpractice set forth in the first, second, and third causes of action, and conclusively established a defense to those claims (see Green v Gross & Levin, LLP, 101 AD3d 1079, 1081; Jean-Baptiste v Law Firm of Kenneth B. Mock, 98 AD3d 566).

The Supreme Court erred in granting that branch of GKN’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the fourth cause of action. The fourth cause of action sought to recover damages for legal malpractice due to GKN’s alleged misrepresentation that it had filed a motion to reargue on the plaintiffs’ behalf. While the documentary evidence submitted by GKN in support of its motion established that such a motion was prepared, the motion itself indicates that it was not filed until after GKN ceased representing the plaintiffs.”