Berger v Lewis Johs Avallone Aviles, LLP 2024 NY Slip Op 05952 Decided on November 27, 2024 Appellate Division, Second Department makes the point that it is not necessary to specifically allege that the alleged malpractice “fell within the agreed scope of defendant’s representation”, although it is necessary that the actual scope of representation encompasses the claimed negligent act.

“”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” (Georgica Bldrs., Ltd. v 136 Bishops Lane, LLC, 175 AD3d 610, 611 [internal quotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87-88). Further, “[o]n a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Georgica Bldrs., Ltd. v 136 Bishops Lane, LLC, 175 AD3d at 611; see Leon v Martinez, 84 NY2d at 87).

Here, accepting the allegations in the complaint as true and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d at 87), the complaint sufficiently stated a cause of action to recover damages for legal malpractice. Contrary to Wohlgemuth’s contention, “‘a legal malpractice plaintiff need not, in order to assert a viable cause of action, specifically plead that the alleged malpractice fell within the agreed scope of the [*2]defendant’s representation'” (Shan Yun Lin v Lau, 210 AD3d 817, 818, quoting Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 39). Further, “‘a legal malpractice defendant seeking dismissal pursuant to CPLR 3211(a)(1) must tender documentary evidence conclusively establishing that the scope of its representation did not include matters relating to the alleged malpractice'” (id., quoting Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d at 39). Here, Wohlgemuth failed to submit documentary evidence sufficient to make that showing or to otherwise submit documentary evidence utterly refuting the plaintiff’s allegations or conclusively establishing a defense as a matter of law (see Ki Kuo Zhang v Lau, 210 AD3d 829, 831; Shan Yun Lin v Lau, 210 AD3d at 818).

Accordingly, the Supreme Court properly denied Wohlgemuth’s motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it.”