CPLR 3211 dismissals are granted more frequently than might be expected,  Dedaj v Berisha  decided on July 15, 2020 Appellate Division, Second Department is almost an exception.  Two items are of interest.  First, the assignment of the legal malpractice claim is affirmed, almost without comment.  Second, the (a)(7) motion is denied almost mechanically.  This is not always the case in legal malpractice litigation.

“We agree with the Supreme Court’s determination denying the defendant’s motion to dismiss the complaint insofar as asserted against it to the extent that the motion was based upon CPLR 3211(a)(1). The documents proffered by the defendant did not utterly refute the plaintiffs’ allegations or conclusively establish that there was no attorney-client relationship between the [*2]defendant and the plaintiffs (see Anderson v Armentano, 139 AD3d at 771; Mawere v Landau, 130 AD3d 986, 990).

We also agree with the Supreme Court’s denial of the defendant’s motion to dismiss the complaint insofar as asserted against it to the extent that the motion was made under CPLR 3211(a)(7). Where, as here, evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v Ginzburg, 43 NY2d 268, 275).

Here, the allegations in the complaint, if true, are sufficient for the plaintiffs to establish a cause of action to recover damages for legal malpractice (see Mawere v Landau, 130 AD3d at 990; see also Sitar v Sitar, 50 AD3d 667, 669-670). The defendant’s evidentiary submissions did not establish that a material fact alleged in the complaint is not a fact at all and that no significant dispute exists regarding it (see Lopez v Lozner & Mastropietro, P.C., 166 AD3d 871, 873; see also Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d at 589).

We also agree with the Supreme Court’s determination denying that branch of the defendant’s motion which was based upon CPLR 3211(a)(3) to dismiss the fourth cause of action insofar as asserted against the defendant for lack of standing (see General Obligations Law § 13-101; Greevy v Becker, Isserlis, Sullivan & Kurtz, 240 AD2d 539, 541). That cause of action, asserted by the plaintiff Prel Dedaj, as assignee of Arben Dedaj, alleges that the defendant engaged in legal malpractice with respect to Arben Dedaj.”