Ripa v Petrosyants 2022 NY Slip Op 01336 Decided on March 2, 2022
Appellate Division, Second Department can be difficult to follow The AD decision basically reverses Supreme Court on almost all of its findings, and yet leaves a case more or less intact. There are two lessons to be taken from this decision.
The first is: “Here, the Supreme Court erred in granting dismissal of the legal malpractice cause of action based upon the plaintiff’s failure to produce evidence of an attorney-client relationship. An attorney-client relationship does not depend on the existence of a formal retainer agreement (see Hall v Hobbick, 192 AD3d at 778), and the plaintiff had no obligation to demonstrate evidentiary facts to support the allegations contained in the complaint (see Doe v Ascend Charter Schs., 181 AD3d 648, 650; Stuart Realty Co. v Rye Country Store, 296 AD2d 455, 456). Furthermore, the complaint sufficiently alleges the existence of an attorney-client relationship between the plaintiff and the Ofshtein defendants (see McLenithan v McLenithan, 273 AD2d 757, 759-760), as well as the other elements of legal malpractice, including damages, to support a legal malpractice cause of action (see Mawere v Landau, 130 AD3d at 990; Sitar v Sitar, 50 AD3d 667, 669-670). However, to the extent the plaintiff seeks an award of treble damages in the context of the legal malpractice cause of action, it fails to state a cause of action pursuant to Judiciary Law § 487 (see Pszeniczny v Horn, 193 AD3d 1091; Gorbatov v Tsirelman, 155 AD3d 836, 840). Accordingly, the court should have granted that branch of the Ofshtein defendants’ motion which was to dismiss the legal malpractice cause of action only to the extent of directing dismissal of so much of that cause of action as sought to recover treble damages pursuant to Judiciary Law § 487 and otherwise should have denied that branch of the motion.”
The second is: “The Supreme Court properly denied that branch of the Ofshtein defendants’ motion which was to dismiss the breach of contract cause of action insofar as asserted against Ofshtein. Contrary to the Ofshtein defendants’ contention, the plaintiff did not have a burden to provide extrinsic evidence to support his allegations regarding an alleged oral contract or its terms (see Doe v Ascend Charter Schs., 181 AD3d at 650; Stuart Realty Co. v Rye Country Store, 296 AD2d at 456). Further, to the extent certain checks may constitute documentary evidence (see Big Blue Prods., Inc. [*3]v Arlia, 187 AD3d 1118, 1119), they did not utterly refute the plaintiff’s factual allegations. Payments to a third party can be used to show performance in a breach of contract action (see Shah v Exxis, Inc., 138 AD3d 970, 972-973).”