CPLR 3211(a)(1) allows for dismissal based upon “documentary evidence.”  Such a win is usually “on the merits” and generally allows for later res judicata and collateral estoppel treatment.  Dismissal under CPLR 3211(a)(7), while more common, is not on the merits and is not “with prejudice.”  the later effects are much smaller, and a case can be repled under CPLR 205.  Cali v Maio  2020 NY Slip Op 07853 Decided on December 23, 2020 Appellate Division, Second Department displays the reasoning process.

“Contrary to the determination of the Supreme Court, the defendants failed to establish that they were entitled to dismissal of the cause of action to recover damages for legal malpractice pursuant to CPLR 3211(a)(1). “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 Leon v Martinez, 84 NY2d 83, 88). Construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible inference, as we are required to do (see Leon v Martinez, 84 NY2d at 87; Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996), the documentary evidence submitted by the defendants failed to utterly refute the plaintiff’s allegations of legal malpractice, as augmented [*2]by her affidavit in opposition to their motion (see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830; Anderson v Armentano, 139 AD3d 769, 771).

However, the defendants were entitled to dismissal of the causes of action to recover damages for legal malpractice and breach of contract under the branch of their motion which was pursuant to CPLR 3211(a)(7). “On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), ‘[w]e accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'” (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 141, quoting Leon v Martinez, 84 NY2d at 87-88).

“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). Here, the plaintiff failed to adequately plead specific factual allegations showing that, but for the defendants’ alleged negligence, she would have obtained a more favorable outcome in the foreclosure action (see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d 908, 909; Benishai v Epstein, 116 AD3d 726, 728). Although the plaintiff’s alleged damages are based on the loss of her home due to foreclosure, the plaintiff failed to allege that, but for the defendants’ negligence, the foreclosure action would not have resulted in a judgment of foreclosure and sale. Accordingly, the complaint failed to state a cause of action to recover damages for legal malpractice and the defendants were entitled to dismissal of that cause of action pursuant to CPLR 3211(a)(7) (see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d at 909; Benishai v Epstein, 116 AD3d at 728). Since the breach of contract cause of action arose from the same operative facts as the legal malpractice cause of action and did not allege distinct and different damages it was duplicative of the legal malpractice cause of action and thus, also subject to dismissal (see Prott v Lewin & Baglio, LLP, 150 AD3d 908, 910; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813-814).

The defendants also were entitled to dismissal of the third cause of action, which alleged that the defendants overbilled the plaintiff for legal fees. Although overbilling can constitute a cause of action to recover damages for breach of contract by a client against her or his attorney (see O’Connor v Blodnick, Abramowitz and Blodnick, 295 AD2d 586, 587), here, that cause of action was barred by res judicata under CPLR 3211(a)(5). The defendants submitted, among other things, an arbitration case report which indicated that the parties had participated in an arbitration relating to fees owed for legal services rendered by the defendants. The plaintiff’s allegations evidence that her overbilling cause of action is directly related to the fee dispute, and that it should have been litigated during that arbitration proceeding. Thus, the final arbitration award bars the cause of action to recover damages for overbilling (see CPLR 3211[a][5]; Breslin Realty Dev. Corp. v Shaw, 72 AD3d 258, 263, 265; see also Mahler v Campagna, 60 AD3d 1009, 1012).”

 

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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.