It’s the first time we have seen this approach. Plaintiff sues for a declaratory judgment that Defendant attorneys overbilled their client, as well as on claims of legal malpractice.  In Berardi v Phillips Nizer, LLP  2016 NY Slip Op 30860(U)  May 6, 2016  Supreme Court, New York County
Docket Number: 157690/2012  Judge: Nancy M. Bannon the Court writes: “In this legal malpractice action and action for a judgment declaring that the defendants overbilled the plaintiff for legal services, the defendants move pursuant to CPLR 3211 (a) (1), (5), and (7) to dismiss the amended complaint. The court denies the motion. “The second cause of action in the initial complaint alleged that the defendants overbilled the plaintiff by charging excessive and unreasonable attorneys’ fees. In her amended complaint, the plaintiff adds a specific allegations to the first cause of action that, in 2005, the husband’s counsel had provided a nonmatrimonial attorney at the firm with copies of the shareholder and member agreements referable to the business entities but, for at least two years, that attorney did not share that information with the defendant Elliot Wiener, an attorney with the firm who was the lead matrimonial lawyer assigned to the plaintiff’s case. The amended complaint further asserts that, during that period of time, the firm did not appraise the value of the business entities, did not analyze the consequences of the restrictions on sale and transfer of shares and interests articulated in those agreements, or the difference in value between an immediate buyout of the shares and the plaintiff’s retention of a minority interest in the business entities. The plaintiff alleges that, as a consequence of the nonmatrimonial attorney’s conduct, neither the firm nor Wiener had sufficient facts upon which to base their strategy in responding to the husband’s motion to set aside the postnuptial agreement. The plaintiff further asserts, in a newly added second cause of action, that the firm’s malpractice extended to its failure to properly supervise the nonmatrimonial attorney in connection with her conduct, as described in the first cause of action. The cause of action alleging overbilling was reiterated in the amended complaint as the third cause of action. ”

“On a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading is to be afforded a liberal construction (see, CPLR 3026). The facts as alleged in the complaint must be accepted as true, the plaintiffs accorded the benefit of every possible favorable inference, and the court must determine only whether the facts as alleged fit within any cognizable legal theory. See Leon v Martinez, 84 NY2d 83, 87~88 (1994); Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., supra, at 270-271. Nonetheless, a complaint must “be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions” that form the basis of the complaint and “the material elements of each cause of action” (CPLR 3013). In assessing a motion under CPLR 32ll(a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint. See Nonnon v City of New York, 9 NY3d 825, 827 (2007); Rovella v Orofino Realty Co., 40 NY2d 633, 635 ( 1976) . Where, as here, the movant submits evidence beyond the complaint in support, of a motion to dismiss pursuant to CPLR 3211(a) (7), the criterion is whether the proponent of the pleading has a cause of action, not whether he or she has stated one, but dismissal should not result unless “a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it.” Guggenheimer v Ginzburg, 43 NY2d 268, 275 (1977). The amended complaint states a cause of action to recover damages for legal malpractice, as the allegations, if proven, satisfy all of the elements of that cause of action. See Russo v Rozenholc, 130 AD3d 492 (1st Dept 2015). The amended complaint also states a cause of action sounding in negligent supervision, based, in part, on an alleged violation of Rule 5. 1 of the Rules of Professional Conduct, which may constitute evidence of tortious misconduct. See William Kaufman Organization, Ltd. v. Graham and James, LLP, 269 AD2d 171 (1st Dept 2000). Moreover, those causes of action satisfy the notice requirements of CPLR 3013. The cause of action for a judgment declaring that the defendants overbilled the plaintiff, while not necessarily independent of the legal malpractice cause of action, likewise states a cause of action. “‘A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'” Matter of Tilcon N.Y .. Inc. v Town of Poughkeepsie, 87 AD3d 1148, 1150 (2~ Dept 2011) , quoting Staver Co. v Skrobisch, 144 AD2d 449, 450 (2nd Dept 1988). “Thus, ‘where a cause of action is sufficient to invoke the court’s power to render a declaratory judgment . . as to the rights and other legal relations of the parties to a justiciable controversy, a motion to dismiss that cause of action should be denied'” (DiGiorgio v 1109-1113 Manhattan Ave. Partners. LLC, 102 AD3d 725, 728 (2nd Dept 2013), quoting Matter of Tilcon N. Y.. Inc. v Town of Poughkeepsie, supra, at 1150). Inasmuch as the defendants have not identified which allegations in the amended complaint that are asserted to be facts are not truly facts at all, and have not demonstrated that the purportedly nonfactual nature of any of the plaintiff’s allegations is indisputable, the plaintiff has also shown that she “has” causes of action to recover damages for legal malpractice and for negligent supervision, and for a judgment declaring that the defendants overbilled her by virtue of their malpractice. ”

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