The process is set forth in CPLR 3211(c) wherein the Court may convert a motion to dismiss under CPLR 3211 into a motion for summary judgment under CPLR 3212, so long as adequate notice is given to the litigants. In Englese v Sladkus 2018 NY Slip Op 50621(U) Decided on April 25, 2018 Supreme Court, New York County, Judge St. George tells the litigants that the materials presented by the attorney in this 3211 motion is better looked at in a 3212 setting, and employs CPLR 3211(c).
“The underlying action related to an apartment that plaintiffs purchased in the building located at 205-209 East 57th Street. Plaintiffs alleged that the apartment was defectively constructed and had toxic mold and that they relocated following an inspection which revealed the scope of the problems. Between June 2007 and August 2009 plaintiffs tried unsuccessfully to get defendant 205-209 East 57th Street Associates, LLC (Sponsor), the owner of the building, to remediate the problems. When these efforts failed, around November 2009, plaintiffs commenced the underlying lawsuit, with another law firm as their counsel. Subsequently, they hired defendants to replace the original firm. The complaint alleges that defendants assured them they would add the Clarett Group, which owned the building’s Sponsor, as well as Clarett’s CEO [*2]at the time, Veronica Hackett, as defendants. Plaintiffs assert that defendants also assured them they would research and confirm that the Sponsor had sufficient assets to satisfy any judgment.
According to the complaint, defendants did none of the things they promised, and in addition they allowed the statute of limitations to lapse. Because of this, and because the Sponsor now contained no assets, plaintiffs contend, they were forced to accept a poor settlement during the mediation that commenced in March of 2012. Plaintiffs assert that, had the case gone to trial, they would have “obtained a judgment against, and collected from, [the defendants in the underlying case] net money damages in excess of three million dollars” (Complaint, ¶ 48). They assert that defendants misled them deliberately in all the above actions. Accordingly, plaintiffs assert causes of action for negligence and legal malpractice, breach of contract, breach of fiduciary duties, fraud and/or negligent misrepresentation, and fee disgorgement.”
“Dismissal is proper under CPLR § 3211 (a) (7) if the allegations are duplicative of or encompassed by the legal malpractice claim (see Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C., — AD3d &mdash, &mdash, 2018 Slip Op 01456, at *3 [1st Dept 2018]). Accordingly, much of the second cause of action, for breach of contract, duplicates the legal malpractice claim and cannot stand. The remainder of this cause of action, which asserts that defendants billed them for work they did not perform, or improperly billed them $30,000, cannot stand because of plaintiffs’ acknowledgment that they paid the bills without objection (see Gamiel, 60 AD3d at 474-75). Therefore, the second cause of action is dismissed. The portions of the third and fourth causes of action which relate to the allegations of overbilling are dismissed for the same reason. The remainder of the third cause of action, for breach of fiduciary duty, and the fourth cause of action, for fraud, are dismissed because the allegations are adequately encompassed by the claims for malpractice.[FN3]
Defendants have not satisfied their burden under CPLR § 3211 (a) (1), which requires them to “utterly refute plaintiff[s’] allegation, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314, 326 ). In a legal malpractice case, a plaintiff must establish that the attorney was negligent, that the negligence [*5]proximately caused plaintiff’s losses, and that the negligence damaged the plaintiff (Global Business Inst. v Rivkin Radler, 101 AD3d 651, 651 [1st Dept 2012]). Thus, to prevail on this argument, defendants must rely on documents that conclusively refute these elements. Defendants primarily rely on emails to support this prong of their motion. Emails and other correspondence may be sufficient to satisfy this burden in certain circumstances (see Kolchins v Evolution Mkts., Inc., — NY3d &mdash, &mdash, 2018 NY Slip Op 02209, at *5  [citing Kolchins v Evolution Mkts., Inc., 128 AD3d 47, 58-59 [1st Dept 2015], aff’d, — NY3d — ), but only if they “negate beyond substantial question” the allegations in the complaint” (Amsterdam Hospitality Group,120 AD3d at 433), and “conclusively establish[ ] a defense to the asserted claims as a matter of law” (Calpo-Rivera v Siroka, 144 AD3d 568, 568 [1st Dept 2016] [citation and internal quotation marks omitted] [finding that the emails, affidavits, and contract at issue were not “documentary evidence”]). Here, defendants’ documents do not satisfy this burden.
Along with the emails, the remaining contentions in the motion and the opposing papers raise issues of fact that are not proper in the context of a motion to dismiss but are eminently worthy of consideration in a summary judgment motion. Under CPLR § 3211 (c), the Court has the discretion to convert this motion to one for summary judgment. The Court may do so regardless of whether issue has been joined, provided the Court gives ample notice to the parties to “make a complete record and to come forward with evidence that could be considered” (Nonnon v City of New York, 9 NY3d 825, 826 ; see also Mihlovan v Grozavu, 72 NY2d 506  [reversing the court’s conversion of pre-answer motion to dismiss to one for summary judgment solely because the court did not give the parties notice and the opportunity to brief the issue]). One of the bases for such conversion is that it can lead to an “expeditious disposition of the controversy” (CPLR § 3211 [c]).”