Bernstein v Jacobson 2025 NY Slip Op 03173 Decided on May 28, 2025 Appellate Division, Second Department is the story of an attorney-client relationship gone bad. But…had it ended?
“In an action to recover damages for legal malpractice, the defendant appeals from an order of the Supreme Court, Queens County (Karina E. Alomar, J.), dated December 6, 2022. The order denied the defendant’s motion pursuant to CPLR 3211(a) to dismiss the amended complaint.
ORDERED that the order is affirmed, with costs.”
“Here, the affidavit, emails, and letter submitted by the defendant did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) (see County of Westchester v Unity Mech. Corp., 165 AD3d at 884-885; Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714). Further, the documentary evidence submitted with the motion did not utterly refute the plaintiff’s allegation that an attorney-client relationship existed at the time of the alleged malpractice (see Harris v Barbera, 96 AD3d 904, 905). Although the defendant submitted the retainer agreement indicating the conditions upon which the attorney-client relationship could be terminated, that document failed to conclusively establish that no attorney-client relationship existed at the time of the alleged malpractice (see Buchanan v Law Offs. of Sheldon E. Green, P.C., 215 AD3d 790, 791; Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d 587, 588).
Moreover, accepting the facts alleged in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the amended complaint stated a cause of action for legal malpractice (see CPLR 3211[a][7]; Doe v Ascend Charter Schs., 181 AD3d at 649-650). Considering the amended complaint and an affidavit by the plaintiff’s spouse that was properly submitted to amplify the allegations in the amended complaint (see Zi Kuo Zhang v Lau, 210 AD3d at 831), the plaintiff sufficiently alleged that she would have prevailed in a personal injury action but for the defendant’s alleged malpractice (see Ramirez v Donado Law Firm, P.C., 169 AD3d 940, 943). Contrary to the defendant’s contentions, the plaintiff’s allegations of serious injury and damages were not speculative or conclusory (see Denisco v Uysal, 195 AD3d 989, 991).”