There is nothing new in the case of Jack Hall Plumbing & Heating, Inc. v Duffy 2012 NY Slip Op 07249   Appellate Division, Third Department , merely a restatement of the long-standing and settled rule that expert opinion is required to show that there was / was not a departure from good and accepted practice. Supreme Court got it wrong, and the Third Department corrected Supreme Court, not once but twice.
 

"Soon after entering into the agreement, the relationship between the Halls and Scudder [*2]deteriorated to the point that Hall became concerned that he and his sons were in danger of losing the business due to Scudder’s mismanagement. Accordingly, Hall sought legal advice from defendant H. Wayne Judge concerning how to terminate Scudder in compliance with the employment agreement and in view of the urgency caused by the perceived danger to the business. After their meeting, Judge drafted a letter for Hall to give to Scudder. The letter outlined the reasons for Scudder’s termination and informed him that it was effective immediately. Hall and his sons then unanimously voted to terminate Scudder without giving Scudder notice and an opportunity to respond, after which Hall gave Scudder the letter drafted by Judge. Scudder responded by commencing an action against plaintiff for breach of the employment agreement. Although plaintiff, represented by Judge, prevailed at the trial of that action, we reversed and found that plaintiff failed to comply with the unambiguous terms of the employment agreement by terminating Scudder without any notice or opportunity to respond (Scudder v Jack Hall Plumbing & Heating, 302 AD2d 848 [2003]). Plaintiff then commenced this action alleging that defendants committed legal malpractice by negligently advising plaintiff in connection with Scudder’s termination. After joinder of issue and discovery, defendants moved for summary judgment dismissing plaintiff’s complaint. Finding that plaintiff’s opposing papers were inadequate to raise an issue of fact, Supreme Court granted the motion.

Plaintiff contends on appeal that defendants failed to meet their initial burden of presenting evidence in admissible form establishing that they had exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in discharging their obligations to plaintiff (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Geraci v Munnelly, 85 AD3d 1361, 1362 [2011]; Adamski v Lama, 56 AD3d 1071, 1072 [2008]). This issue of the adequacy of the professional services provided here requires a professional or expert opinion to define the standard of professional care and skill owed to plaintiff and to establish whether the attorney’s conduct complied with that standard (see Tabner v Drake, 9 AD3d 606, 610 [2004]; Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]; Greene v Payne, Wood & Littlejohn, 197 AD2d 664, 666 [1993]). Plaintiff argues that the affirmation by Judge submitted in support of defendants’ motion for summary judgment fails to establish his prima facie compliance with the standard of care. We must agree.

According to Judge, based on his reading of the contract and plaintiff’s bylaws, he formed a legal opinion that the employment agreement was ambiguous and that immediate termination was consistent with its terms. Judge was motivated, however, by Hall’s desire for urgency and his own view that engaging in the termination process provided for by the agreement would damage plaintiff’s business. While Judge offers his legal conclusion and the business-related motivation behind it, his affirmation is insufficient to establish compliance with the applicable standard of care because he neither defines that standard nor explains that a reasonable attorney would reach the same conclusion that he did on the facts as they were presented to him. In short, Judge’s explanation of the urgency of the business factors that he considered in formulating the advice that he gave fails to establish that his legal advice was within the standard of care.

Further, Judge’s reliance on the fact that he initially prevailed at trial as proof that his interpretation of the employment agreement was reasonable is also misplaced as that order was reversed by this Court on the law (Scudder v Jack Hall Plumbing & Heating, 302 AD2d at 851). Accordingly, the argument that any error was one of judgment in selecting between reasonable alternatives must fail in light of the lack of a prima facie showing that the legal advice provided was a reasonable course of action. Inasmuch as defendants failed to shift the burden to plaintiff [*3]to demonstrate a departure from the standard of care, the motion for summary judgment should have been denied (see Suppiah v Kalish, 76 AD3d 829, 832 [2010]; Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d at 927; Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282, 284 [1999]). "
 

We have mused on the eagerness with which Courts sometimes exhibit in granting early dismissal of legal malpractice cases, sometimes prematurely grappling with the "but for" portion of the case well before a good record is developed.  In Carter Ledyard & Millburn LLP v Pearl Seas Cruises, LLC  2013 NY Slip Op 33081(U)  December 5, 2013  Sup Ct, New York County  Docket Number: 155872/2013  Judge: Eileen A. Rakower we see a reasoned approach to the motion practice.  The Court notes that there are questions of fact on whether the client objected to attorney’s bills, and decides that the affirmative defenses are well pleaded.  From the decision:

"Kennedy avers that in August 2008, pursuant to a written letter of engagement, Pearl Seas retained Plaintiff as legal counsel in connection with a pending arbitration arising out of a contract for the construction of a passenger vessel, Plaintiff continued to represent Pearl Seas through October 7, 2011, Plaintiff continued to send invoices to Pearl Seas for its services, Pearl Seas
admitted receiving and retaining invoices from Plaintiff and made partial payments. In opposition, Defendant submits the affidavit of Charles A. Robertson, which avers that Pearl Seas repeatedly complained about Kennedy’s performance, objected to the firm’s invoices, and terminated the firm due to Kennedy’s performance. Furthermore, Defendant contends that discovery is needed from
Plaintiff, including documents and testimony from Kennedy and his associate, Christopher Rizzo, regarding Defendant’s complaints about Kennedy’s performance and objection to Plaintiffs invoices."

In light of issues of fact concerning whether Defendant objected to the invoices and Plaintiff’s performance and Defendant’s outstanding First Notice for Discovery and Inspection and Notice to Take Deposition, Plaintiff’s motion for summary judgment is denied."

"On a motion to dismiss pursuant to CPLR §321 l(a)(l) "the court may grant dismissal when documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." (Beal Sav. Bank v. Sommer, 8 NY3d 318, 324 [2007]) (internal citations omitted) "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." (Guggenheimer v. Ginzburg, 43 N.Y.2d
268, 2 7 5 [ 1977]) (emphasis added). A movant is entitled to dismissal under CPLR §3211 when his or her evidentiary submissions flatly contradict the legal conclusions and factual allegations of the complaint. (Rivietz v. Wolohojian, 3 8 A.D.3d 301 [1st Dept. 2007]) (citation omitted). Pearl Seas sets forth the following "facts common to all counterclaims:"

13. Mr. Kennedy advised Pearl Seas that the company would prevail in its dispute with Irving Shipbuilding. He repeatedly gave assurances of success to Pearl Seas, all of which failed, as described below, because of his poor performance and legal malpractice.
14. However, Mr. Kennedy’s performance was in sharp contrast to his assurances. In fact, Mr. Kennedy’s and Counterclaim Defendants’ performance as counsel for Pearl Seas fell far below the standard of care required of attorneys.
15. Specifically, and among other failings, Mr. Kennedy was routinely unprepared for appearances before the arbitration panel and in federal court.

16. Mr. Kennedy also failed to adequately understand critical legal issues, including the law relating to the issuance and timing of classification certificates. 17. Mr. Kennedy’s cross-examinations of key witnesses at the arbitration hearing were poor. They were unfocused, poorly conceived, and poorly executed. Indeed, Mr. Kennedy’s cross-examinations were so poor that
Pearl Seas forced him to allow his junior associate to examine a key witness. 18. Mr. Kennedy’s arguments to the arbitration panel were equally poor. He failed to make obvious arguments, and was extremely combative with the panel. 19. Mr. Kennedy also botched a key witness interview with a potentially critical witness, James Shephard, which further compromised Pearl Seas’ case.
20. From Pearl Seas’ perspective, Mr. Kennedy’s poor performance in the arbitration had caused the arbitration panel to tum against it, notwithstanding his repeated assurances of success. Indeed, Pearl Seas expected to do far better than they ultimately did in the arbitration, which
was a direct result of Counterclaim Defendants’ malpractice. 21. Mr. Kennedy also exhibited strange and unprofessional behavior outside of the arbitration. He was unwilling to take advice from anyone else, and did not work well with the term that Pearl Seas had put in place. He was unfocused and scatterbrained. He would frequently cut critical meetings short in order to get home to watch a television program that he said he was "addicted to."
22. Fearful that it was going to lose what was a winnable case, on or about October 7, 2011, Pearl Seas terminated Mr. Kennedy and his firm’s representation of the company. Pearl Seas was forced to retain another law firm, which only added to the expenses related to the arbitration, but which
did turn the case around immediately and produced an acceptable result. 23. In total, Pearl Seas paid Counterclaim Defendant more than $2.2 million for its services, which had no value. That does not include the amounts that Counterclaim Defendant claim are due in this lawsuit.
24. Pearl Seas repeatedly made clear that it was unhappy with Mr. Kennedy’s performance, and that it disputed the amounts billed to it."

"Accepting all allegations as true, Defendant has stated a counterclaim for legal malpractice and Plaintiffs proffered evidentiary submissions do not flatly contradict the legal conclusions and factual allegations of this counterclaim."

High end financing companies tailored to the art and antique world hit a bare patch, and suddenly are in $20 Million + financing difficulties.  They hire plaintiff law firm in the Hahn & Hessen LLP v Peck   2013 NY Slip Op 33017(U)  November 25, 2013  Sup Ct, New York County  Docket Number: 603122/08  Judge: Barbara Jaffe which is seeking its attorney fees.  Simply put, in the face of extremely sophisticated financing agreements, and multiple-draft settlement agreements of disputes valued at over $ 20 million, counterclaimant’s case derives from the unsophisticated claims that he was unaware of the terms of the settlements.

"In 2007, SageCrest II, LLC (SageCrest), a private equity firm, sued defendants, alleging  that they had defaulted under the terms of a loan. (SageCrest II LLC v ACG Credit Company, LLC, et al., index No. 600195/2007). (NYSCEF 157). On or about September 11, 2007, another justice of this court granted an ex parte order of attachment against defendants ACG Credit Company, LLC and Art Capital Group II, LLC (ACG II), securing $29,841,156.19 allegedly owed SageCrest. Following a mediation session on January 25, 2008, the parties signed a shortform settlement agreement, which, inter alia, requires that defendants pay SageCrest $29,925,000, $21 million of which would effectively vacate the order of attachment. The agreement is subject to further revisions and final documentation, and either party is authorized to submit it to the court to be so-ordered. (Id., Exh. B).Unable to secure the $21 million, defendants, represented by plaintiff, sought to renegotiate the terms of the settlement, offering $14.3 million in cash and an assignment of $6.7 million in loans due defendant ACG II. SageCrest rejected defendants’ offer and sought by motion to have the court so-order the short-form agreement. (NYSCEF 157, Exh. C). In response, defendants sought, also by motion, to have the proposed assignment treated as the "cash equivalent" of the $6.7 million. They attached to their motion an affidavit from Peck asserting his repeated and unsuccessful efforts to assure SageCrest that the loans would be paid. (Id., Exh. D). "

"At an EBT held on June 27, 2011, Peck testified that he recalled questioning Newman on May 18 as to whether the agreement protected him personally, and that Newman responded that the pledged loans were the sole security for the assignment, along with the "credit enhancement
of my limited personal guarantee," and that this limitation of liability was the "beauty of the settlement." (NYSCEF 168). Although Peck conceded that he had no reason to believe that SageCrest had agreed to the sole recourse provision, he nonetheless maintained that he thought
that the sole recourse provision was included in the final agreement. (NYSCEF 168).At an EBT held on June 27, 2011, Peck testified that he recalled questioning Newman on May 18 as to whether the agreement protected him personally, and that Newman responded that the pledged loans were the sole security for the assignment, along with the "credit enhancement of my limited personal guarantee," and that this limitation of liability was the "beauty of the settlement." (NYSCEF 168). Although Peck conceded that he had no reason to believe that SageCrest had agreed to the sole recourse provision, he nonetheless maintained that he thought that the sole recourse provision was included in the final agreement. (NYSCEF 168)."

"Plaintiff has thus established, primafacie, that it did not breach the standard of professional care and that its actions were not the proximate cause of the 2009 action. (See Engelke v Brown Rudnick Berlack Israels LLP, _ NYS2d _, 2013 NY Slip Op 07419 [1st Dept 2013] [plaintiff could not show with sufficient certainty that, absent alleged malpractice, he would have been able to avert defending second lawsuit]; Natural Organics Inc. v Anderson Kill & Glick, P.C., 67 AD3d 541, 542 [1st Dept 2009], Iv dismissed 14 NY3d 881 [2010] [plaintiff failed to demonstrate causal connection between alleged malpractice and injuries]; Cohen v Weitzner, 47 AD3d 594, 595 [1st Dept 2008] [typographical error on defendant attorneys’  spreadsheet not proximate cause of plaintiffs’ injury]; Leder v Speigel, 31 AD3d 266, 268 [1st Dept 2006], affd 9 NY3d 836 [2007], cert denied 552 US 1257 [2008] [plaintiffs malpractice claim based on unsupported, conclusory assertion that defendant’s alleged erroneous advice proximately caused injury]; Merz v Seaman, 265 AD2d 385, 389 [2d Dept 1999] [defendant attorneys who allegedly negligently drafted contract not liable for failing to warn banker-client about repercussions of personal guarantee]; Levine v Lacher & Lovell-Taylor, 256 AD2d 147 [1st Dept 1998] [plaintiffs disposition of collateral in disregard of court order was sole proximate cause of his injury; that alleged negligent drafting of loan agreement contributed to injury …"

Supreme Court and the Appellate Division sometimes are able to perform surgery on a complaint, allowing provable claims and damages to remain in play while the balance is excised.  Such is the case in Morad Assoc., LLC v Lee   2013 NY Slip Op 08204   Decided on December 10, 2013
Appellate Division, First Department.   
 

We deduce that defendant attorney represented a landlord, and that a tenant was illegally evicted, and when evicted, his property was destroyed.  Both Justice Edmead and the AD found that the attorneys might be liable for the illegal eviction, but the AD conclusively held that attorneys were not responsible for the destruction.

"The evidence submitted by defendant attorney, while showing that he may not be liable for a large measure of the damages assessed against plaintiff, failed to establish as a matter of law that his alleged negligence was not the cause of at least some of those damages. In addition to the damage to the property of plaintiff’s tenant, plaintiff was also assessed damages for wrongful eviction for which defendant may be held liable. We find no basis for holding defendant liable for any damages plaintiff incurred when its agents destroyed the tenant’s property. "

Wherever attorneys do their work the question of legal malpractice may arise. In today’s New York Law Journal, Joel Cohen and James Bernard present an excellent compilation of potential legal malpractice issues in the ESI area.  Investigation of electronically stored information has become a central issue in litigation since the Zabulake v. USB Warburg decision.  As the country becomes more involved in social media, further sophistication is required.  Even the question of when an attorney may use public Wi-Fi is discussed.   From the article "The ‘Ethic’ of Getting up to Speed ‘Technologically’ by Cohen and Bernard:

"When things end up poorly in a case, whether the client deserved to win or not, the client may decide to come after his criminal lawyer claiming malpractice, either in a civil action or in a post-conviction proceeding claiming "ineffectiveness." He may argue that the lawyer 1) didn’t explain all of the litigating options to me; or 2) was "ineffective" in investigating the case, or in cross-examining key witnesses; or 3) did not let me, or mistakenly encouraged me to, take the witness stand in my own defense.

Examples may range from a lawyer’s failure to obtain text messages (we all know about emails), to a failure to obtain posts on a Facebook page, to a more common failure to adequately preserve electronic materials. Which disgruntled client, particularly one sitting in a jail cell, wouldn’t use the judge’s remarks to try to nail to the wall his now or soon-to-be-terminated lawyer for malpractice or—maybe, worse for his reputation at the bar—by claiming "ineffective assistance of counsel" in a post-conviction appeal or collateral attack on his conviction? For in such a lawsuit, appeal or collateral attack he will "name [his lawyer’s] name" as ineffectually having tried the case by tying his own arm behind his back against—perhaps a younger—prosecutor more in tune with modern Internet technology.

The origins of the modern technological revolution in the art of lawyering can probably trace itself back to a number of milestones: the first Westlaw/Lexis terminals, the advent of the Internet and, on the judicial front, Judge Shira A. Scheindlin’s decisions in the seminal Zubulake case. Whether you believe that the decisions opened up a Pandora’s box of litigation costs and burdens for defendants, or whether you believe they gave plaintiffs access to critical evidence which would have otherwise been destroyed, there is no question that Zubulake changed the way litigators think about and prepare cases. It also required us to learn more about technology issues. As Scheindlin wrote in Zubulake V: "[C]ounsel must become fully familiar with her client’s document retention policies, as well as the client’s data retention architecture. This will invariably involve speaking with information technology personnel and the actual (as opposed to theoretical) implementation of the firm’s recycling policy."1 In other words, counsel had to get tech savvy.

And it is worth asking, if a lawyer fails to "get smart," what are the consequences? Of course, there are the potential sanctions that might be available to the aggrieved party. But can, after this new Comment 8, a lawyer face an ethics charge for this sort of lapse in knowledge? It is quite possible that it could be the basis for a malpractice claim if the failure to discuss these issues with a client resulted in a serious enough sanction, such as dismissal of a claim or defense.

Given all of the resources which have been devoted to educating the bar about the need to preserve electronic information, emails, documents, etc., it is not too hard to imagine a client claiming that the failure to do so in this day and age amounts to malpractice, even though that would not have been the case however many years ago. In the criminal context, could it rise to the level of ineffective assistance of counsel resulting in a possible conviction reversal? Not too many years ago, the U.S. Supreme Court held that a lawyer provided ineffective assistance of counsel when the lawyer failed to tell a client about the likelihood of deportation if a client pleaded guilty to drug distribution charges.2

There are obvious differences between working with a client on e-discovery issues and informing a client of the legal consequences of pleading guilty to a felony, but it is not impossible to imagine a scenario in which the failure to learn about a client’s technological infrastructure is egregious enough and results in a serious enough sanction so as to bring the attorney’s behavior within the realm of a constitutional claim of ineffectiveness. After all, constitutional ineffectiveness under Strickland is triggered when counsel’s conduct falls "below an objective standard of reasonableness."3 What is "reasonable" in terms of what counsel is expected to know about e-discovery is rapidly changing, and only in the direction of requiring greater knowledge."
 

It seems that Lacher & Lovell-Taylor PC were attorneys working for Lloyd’s of London.  They ran into disputes with the carrier, and in this New York county case, not only had to pay back monies, but were also found not to be covered for a malpractice case.  Here the AD determines that a demand for the return of legal fees paid to a law firm is not "legal malpractice."

Certain Underwriters at Lloyd’s London Subscribing to Policy No. SYN-1000263 v Lacher & Lovell-Taylor, P.C.   2013 NY Slip Op 08112   Decided on December 5, 2013   Appellate Division, First Department 
"Order, Supreme Court, New York County (Anil C. Singh, J.), entered March 26, 2012, which granted plaintiff’s motion for summary judgment declaring that it was not obligated to defend or indemnify defendants in the underlying estate proceeding, and on its cause of action for reimbursement of its defense costs, and order, same court and Justice, entered October 9, 2012, which, to the extent appealable, granted plaintiff’s motion to modify the order to include summary judgment on its supplemental complaint, and order and judgment (one paper), same court and Justice, entered March 13, 2013, awarding plaintiff the total sum of $166,968.90 in defense costs from defendants, unanimously affirmed, with costs.

A claim for the return of legal fees is not a claim for "damages" in a legal malpractice action, as defined in the professional liability policy issued by plaintiff to defendants (see Shapiro v OneBeacon Ins. Co., 34 AD3d 259, 260 [1st Dept 2006], lv denied 9 NY3d 803 [2007]). In support of each of the causes of action, the complaint alleges only that defendants overbilled their client in the underlying estate proceeding; it does not allege facts tending to show that but for their negligence, they could have achieved a better result for him (see Allstate Ins. Co. v Mugavero, 79 NY2d 153, 162-163 [1992]; Barbara King Family Trust v Voluto Ventures LLC, 46 AD3d 423 [1st Dept 2007]). Moreover, plaintiff reserved its right to seek reimbursement of its defense costs in the event of a finding of no coverage (see American Guar. & Liab. Ins. Co. v CNA Reins. Co., 16 AD3d 154 [1st Dept 2005]). "

Legal Malpractice, we often think, is a body of law, written by lawyers, concerning lawyers, judged by lawyers and results in decisions concerning solely lawyers.  However, sometimes this is simply not true.  Venecia V. v August V.  2013 NY Slip Op 08140  Decided on December 5, 2013 Appellate Division, First Department  Saxe, J., J.  is one such example. 
 

Pro-se Husband and pro-se wife are engaged in divorce and custody dispute, and huge  legal malpractice law changes follow.  "This appeal, arising in the context of a contentious post-divorce dispute, raises a variety of challenges to the court’s determinations involving custody, visitation and expenses. While the bulk of these issues may be briefly addressed seriatim, we must address at greater length the unresolved question of whether parents who are directed to pay the fees of the attorney appointed to represent the children may raise the defense of legal malpractice to that attorney’s claim for fees. Determination of this issue requires us to decide whether, as defendant father claims, Mars v Mars (19 AD3d 195 [1st Dept 2005], lv dismissed 6 NY3d 821 [2006]) gives him legal standing to assert the legal malpractice defense.

In Mars v Mars (19 AD3d at 196), this Court held that a parent may assert legal malpractice as an affirmative defense to a Law Guardian’s fee application "to the extent of challenging that portion of the fees attributable to advocacy, as opposed to guardianship." Our ruling was limited by the then-prevailing view that attorneys appointed as law guardians for children in divorce cases often functioned in a role similar to a guardian ad litem, advocating for [*3]what they believed to be the best interests of the child, as opposed to what the child desired. Accepting the rule of Bluntt v O’Connor (291 AD2d 106 [4th Dept 2002], lv denied 98 NY2d 605 [2002]), which held that absent special circumstances, a parent in a visitation dispute lacks standing to bring a legal malpractice claim against a child’s court-appointed law guardian, we limited our ruling to the portion of the law guardian’s fee representing the work that consisted of advocacy rather than guardianship.

Accordingly, after 2007, the distinction made by our ruling in Mars is no longer necessary in cases such as this; where the child is capable of decision-making, the task of the attorney for the child is generally solely advocacy, rather than guardianship, as long as the child is capable of knowing, voluntary and considered judgment. The portion of the Mars decision allowing a parent to raise malpractice as a defense to a fee application for that portion of the fee earned by advocacy has become applicable to the attorney’s entire fee claim. Rule 7.2 does not in any way vitiate the Mars ruling; on the contrary, it renders it more generally applicable.

We reaffirm the essence of the Mars v Mars ruling, namely that a parent may assert legal malpractice as an affirmative defense to the fee claim of an attorney for a child. The attorney for the child, no less than the attorneys for the parties, is serving as a professional and must be equally accountable to professional standards. That the children cannot hire and pay for their own attorneys, leaving it to the court to make the necessary appointment, does not alter the applicable standards, or the means by which they may be raised.

The attorney for the children protests that if this type of defense is allowed generally, parents dissatisfied with the results of their custody claims will use malpractice challenges to avoid paying, resulting in a proliferation of applications for enforcement of ordered fees. She also suggests that the threat of malpractice claims from disgruntled parents will have a negative impact on the effectiveness of attorneys for children, by giving those parents control over the representation of their children.

We disagree. The possibility that a parent who feels aggrieved over the developments in a custody or visitation dispute may claim malpractice as a means of avoiding payment of the attorney’s fee does not warrant granting these attorneys complete immunity against the defense of [*4]legal malpractice. "

Small closely held corporations abound in New York, and they present a special issue for the principal of standing in legal malpractice.  Who actually hired the attorney…was it the president / owner / sole shareholder, or was it the corporate entity.  While the law is clear, Rodolico v Rubin & Licatesi, P.C. 2013 NY Slip Op 08068  Decided on December 4, 2013  Appellate Division, Second Department  shows us a third way the case can be resolved.  Note the lack of "documents" in defendant’s attack on the complaint.
 

"The plaintiff’s daughter worked for the defendant law firm, in which the individual defendants are partners. During her employment, the plaintiff came to learn of an investment opportunity being organized by the defendants, which involved providing high interest, short-term loans for the development of real estate. The plaintiff and his wife, Joanne Rodolico, decided to participate. Several bank checks were purchased by Joanne and a corporation owned by the plaintiff and Joanne, C & R Door and Frame Corporation (hereinafter C & R), and forwarded to the defendants for the purpose of making loans. When five of the loans were not repaid in full, the plaintiff commenced this action seeking to recover from the defendants the money that he was owed, claiming that the defendants effectively borrowed the money from him. Alternatively, the plaintiff sought damages for legal malpractice. The plaintiff made a pre-discovery motion for summary judgment on the complaint, which motion is not the subject of this appeal, and the defendants cross-moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (3), for lack of standing and based upon documentary evidence. The Supreme Court denied the motion and cross motion, and also directed that Joanne and C & R be joined as plaintiffs in the action.

In support of that branch of their cross motion which was to dismiss the complaint [*2]for lack of standing, the defendants argued that the plaintiff had no interest in the loaned funds because two of the loans, for which the plaintiff sought recovery in the second and fourth causes of action, were funded by C & R, and three of the loans, for which the plaintiff sought recovery in the first, third, and fifth causes of action, were funded by Joanne. The plaintiff does not deny that the funds for two of the loans were provided by C & R, but merely asserts that he and Joanne own C & R. However, "[f]or a wrong against a corporation a shareholder has no individual cause of action, though he loses the value of his investment" (Abrams v Donati, 66 NY2d 951, 953; see Citibank v Plapinger, 66 NY2d 90, 93 n; Elenson v Wax, 215 AD2d 429; General Motors Acceptance Corp. v Kalkstein, 101 AD2d 102, 106). Here, the plaintiff’s action was brought in his own name, and there is nothing in the complaint to indicate that the plaintiff brought this action in a derivative capacity, on behalf of C & R. Accordingly, since the plaintiff does not have standing, individually, to seek the return of funds purportedly borrowed from C & R by the defendants, the second and fourth causes of action should have been dismissed insofar as they were asserted by the plaintiff in his individual capacity.

The same is not true, however, of the first, third, and fifth causes of action, which sought the return of funds that the defendants allege were provided by Joanne. The plaintiff and Joanne averred that, although Joanne went to the bank to purchase the bank checks, they do not keep their finances separate, and the funds belonged to both of them. The defendants presented no evidence to the contrary. The plaintiff, therefore, had standing to seek the return of the funds (see generally Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242), and the Supreme Court properly denied the branch of the defendants’ motion which sought dismissal of the first, third, and fifth causes of action for lack of standing.

The Supreme Court also properly denied the branch of the defendants’ motion which was to dismiss the sixth cause of action, alleging legal malpractice, pursuant to CPLR 3211(a)(1). The evidence submitted in support of a motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence "must be documentary’ or the motion must be denied" (Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714, quoting Fontanetta v John Doe 1, 73 AD3d 78, 84 [internal quotation marks omitted]). " [N]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)’" (Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714, quoting Granada Condominium III Assn., 78 AD3d 966, 997; see Suchmacher v Manana Grocery, 73 AD3d 1017; Fontanetta v John Doe 1, 73 AD3d at 86).

Here, the only evidence submitted by the defendants that pertained to the legal malpractice cause of action were affidavits. Accordingly, since the defendants failed to support the branch of their motion seeking to dismiss the legal malpractice cause of action pursuant to CPLR 3211(a)(1) with "documentary" evidence, it was properly denied (see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714; Integrated Constr. Servs., Inc. v Scottsdale Ins. Co., 82 AD3d 1160, 1163; Fontanetta v John Doe 1, 73 AD3d at 86). "