It is unusual for plaintiff to allege that mistakes were made by the attorney due to “mental illness.” Nevertheless, this claim is enunciated by the Court in Allard v Gumenick 2023 NY Slip Op 32696(U) August 4, 2023 Supreme Court, New York County
Docket Number: Index No. 158750/2022 Judge: Lisa S. Headley. The Court denied dismissal to the attorney.

“Plaintiff commenced this action for legal malpractice, which arose when plaintiff, Gisele Brouillette Allard (“Allard”), purchased a property located at 50 East 126th Street in New York, New York (the “Property”), from Robert Gerard Robinson, who was hospitalized. Plaintiff alleges that she put $35,000.00 as a down payment, and gave the prior owner a mortgage for the remaining $100,000.00 of the purchase price, but refused to make a single payment on the $100,000.00 debt. Six months after plaintiff agreed to pay the remaining $100,000.00 of the purchase price in monthly installments over 10 years, the prior owner and holder of the mortgage, Mr. Robinson, passed away.

On June 20, 2005, Cade Davis (“Executrix Davis”), executrix of Mr. Robinson’s estate,
sent plaintiff a letter accelerating payment of the full amount of the outstanding debt, but plaintiff again refused to remit payment. Subsequently, on July 5, 2005, Executrix Davis filed a Foreclosure Action against plaintiff and plaintiff’s corporation, 50 East 126th Street, Inc. In July 2019, plaintiff retained the defendants, Robert Jay Gumenick, Esq., and Robert J. Gumenick, P.C. (“Defendants’ Attorneys”) as special counsel to represent her and her corporation.

Plaintiff contends that she hired the defendants to investigate the filing of plaintiff’s
personal Chapter 11 bankruptcy on December 19, 2018, as opposed to the corporate bankruptcy of 50 East 126th Street Inc. Defendants were also hired to try to formulate a plan to save the Property from being sold at auction. Subsequently, defendants agreed to represent plaintiff in Bankruptcy Court. Plaintiff further contends that Defendant Gumenick only prepared and filed a Declaration of Allard in Opposition to Trustee’s Motion to Extend Trustee’s Time to Object to Discharge of Debtor Pursuant to Federal Rule of Bankruptcy Procedure 4004(b ), and no other advice or services were rendered during the defendants’ representation of plaintiff in Bankruptcy Court. Plaintiff alleges that Defendants breached their duties in their legal representation by not notifying the Plaintiff of the actions they took on her behalf, including their filing of motions. Plaintiff further alleges that because Defendants did not perfect appeals filed in her cas e within a timely manner, she could not retain separate counsel to rectify their error.”

“Under CPLR §3211 (a)(l), a “motion pursuant to CPLR §3211 (a)(l) to dismiss a complaint
based on documentary evidence may be appropriately granted ‘only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law’.” See, Amsterdam Hospitality Group, LLC v. Marshall-Alan Associates, Inc., 120 A.D.3d 431,433 (1st Dep’t 2014). Documents submitted in support of a motion to dismiss pursuant to CPLR §3211(a)(l), “must resolve all factual issues and dispose of the plaintiffs claim as a matter of law.” Foster v. Kovner, 44 A.D.3d 23, 28, (1st Dep’t 2007). Under CPLR §3211 (a)(7), “[i]n considering a motion to dismiss a complaint for failure to state a cause of action … the pleadings must be liberally construed.” Dye v. Catholic Med. Ctr. Of Brooklyn & Queens, 273 A.D.2d 193 (2d Dep’t 2000). (internal quotations omitted). “[T]o recover damages against an attorney arising out of the breach of the attorney’s fiduciary duty, plaintiff must establish the “but for” element of malpractice.” Knox v. Aronson, Mayefsky & Sloan, LLP, 168 A.D.3d 70,76 (2018).

Here, the Court finds that dismissal is not warranted because the evidence submitted by the plaintiff states a cognizable cause of action that the Defendants may have been negligent in handling her case. Plaintiff, in her complaint submits that Defendant Gumenick admitted that he failed to perfect two appeals in a timely fashion resulting in their administrative dismissals, and that he is solely responsible for that failure, as well as his failure to seek an extension of time to do so. See, NYSCEF Doc. No. 80. Further, plaintiff argues that Defendants failed to make a motion to vacate a default Decision and Order, entered on May 28, 2019, and/or perfect an appeal, because Defendant Gumenick admitted that he knew that his mental illness prevented him from properly
pursuing plaintiff’s appeal. Id.”