The issue of the reach of a post-answer CPLR 3211 motion and whether it should have been brought as a CPLR 3212 motion came up in an accounting malpractice case in Pioneer Bank v Teal, Becker & Chiaramonte, CPAs, P.C. 2022 NY Slip Op 22316 [77 Misc 3d 360] October 4, 2022 Platkin, J. Supreme Court, Albany County.

“Notwithstanding the foregoing, [very significant litigation events] defendants moved for dismissal of the complaint under CPLR 3211 (a) (7) and (c), on the grounds that: (1) Pioneer’s claims are partially barred by the expiration of the statute of limitations; (2) the claims for the remaining years must be dismissed because Pioneer was presented with forged financial statements, and, therefore, never relied upon defendants’ actual audit reports; and (3) TBC’s audit reports are not the proximate cause of Pioneer’s alleged losses (see NYSCEF Doc No. 156). Defendants submit 85 exhibits in support of their motion, including letters, emails, financial statements, deposition transcripts and an affidavit.

Pioneer opposes the motion on the grounds that: (1) the complaint states a claim for [*3]accounting malpractice, and defendants do not argue otherwise; (2) binding precedent of the{**77 Misc 3d at 363} Appellate Division, Third Department precludes the consideration of the 85 exhibits submitted and relied upon by defendants to support their motion under CPLR 3211 (a) (7); and (3) TBC’s arguments for dismissal fail on the merits, even if they properly were before the court.”

Nor did defendants move under CPLR 3211 (a) (5) to interpose the defense of the partial expiration of the statute of limitations, and their time in which to do so similarly has expired (see CPLR 3211 [e]). To be sure, defendants preserved the defense in their answer (see id.; see also answer ¶ 156), {**77 Misc 3d at 365}thereby affording them the opportunity to move for summary judgment on the defense or present it at trial (see DeSanctis v Laudeman, 169 AD2d 1026, 1027 [3d Dept 1991] [“although we agree that the issue was properly preserved by defendant, . . . because responsive pleadings were served, defendant’s motion should have been brought pursuant to CPLR 3212 instead of pursuant to CPLR 3211”]; see also CPLR 3212 [c] [contemplating motions for summary judgment “on . . . the grounds enumerated in subdivision (a) or (b) of rule 3211”]).

“The court therefore concludes that defendants’ fact-based causation defense and their partial challenge to the timeliness of Pioneer’s claims should, at this juncture, be the subject of a properly supported motion for summary judgment under CPLR 3212, not a motion for dismissal under CPLR 3211 (a) (7) accompanied by an invitation for conversion under CPLR 3211 (c).

In reaching this conclusion, the court recognizes that the Court of Appeals left open the possibility that a defendant may obtain dismissal under CPLR 3211 (a) (7) through the submission of “conclusive” affidavits and evidence (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976] [“affidavits submitted by the defendant will seldom if ever warrant the relief (it) seeks unless too the affidavits establish conclusively that plaintiff has no cause of action”]), and the other Judicial Departments take a more expansive view of CPLR 3211 (a) (7) (see e.g. Doe v Intercontinental Hotels Group, PLC, 193 AD3d 410, 410 [1st Dept 2021]).

But this court is obliged to follow the Third Department’s recent precedent in Carr, which teaches that “a court resolving a motion to dismiss for failure to state a claim cannot base the determination upon submissions by the defendant,” no matter “how compelling claims made in such submissions may appear” (182 AD3d at 668-669).

Moreover, there are sound reasons for requiring motions like the one made here by defendants to be brought under CPLR 3212. Defendants’ approach needlessly deprives the court of useful procedural tools associated with summary judgment motions, including the requirement that parties supply statements of material facts (see Rules of Commercial Div of Sup Ct [22 NYCRR] § 202.70 [g] [rule 19-a]; see also 22 NYCRR 202.8-g).”

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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.