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 [2002]). 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 [2018] [citing Kolchins v Evolution Mkts., Inc., 128 AD3d 47, 58-59 [1st Dept 2015], aff’d, — NY3d — [2018]), 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 [2007]; see also Mihlovan v Grozavu, 72 NY2d 506 [1988] [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]).”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.