In an otherwise garden or varietal attorney fee dispute with a legal malpractice defense, we ran across the "French Person" defense to attorney fees for the first time. Justice Gische, in Singer v Adler ;  2010 NY Slip Op 33439(U);  Sup Ct, NY County gave it short shrift.

"This action is based upon claims for legal services rendered by plaintiff, Stephen Sayre Singer, to defendant, Joel A. Adler. Adler brings a pre-answer motion to dismiss the verified complaint against him on the basis that it is barred by the statute of limitations and alternatively, he is a “French person” and a New York Court does not have personal jurisdiction over him, pursuant to Article 14 of the Civil Code of the Republic of France. Both parties are attorneys at law and each is self represented in this action."

"Defendant generally claims there is no personal jurisdiction over him because he is a “French person.” Whether this argument pertains to long arm jurisdiction or service of process, it fails.
CPLR 5 302 provides that a court may assert jurisdiction over a non-domiciliary when the non-domiciliary “transacts any business within the state” and the cause of action arises out of that business. See CPLR 302 (a)(l). In order to have personal jurisdiction over a defendant, it is essential that the suit against the non-domiciliary have some “articulable nexus” to the business transacted. See McGowan v, Smith, 52 NY2d 268, 272 (1981). The basis of plaintiffs complaint, premised on plaintiffs performance of legal services for defendant, and the non-payment of legal fees, while defendant was domiciled in New York, amounts to “transaction of business within the state” and has an “articulable nexus” to the business transacted, specifically the provision of legal
services. Therefore, personal jurisdiction over defendant is proper. "
 

Client retains Attorney 1 who is said to commit legal malpractice, and then retains Attorney 2 to try to help fix the problem, and later, to sue Attorney 1.  What communications between client and Attorney 2 are privileged.  in Roberts v Corwin   2012 NY Slip Op 32403(U)   September 10, 2012
Supreme Court, New York County   Docket Number: 115370-2009   Judge: Marcy S. Friedman  we see an interesting analysis.  "The attorney-client privilege is waived “where a party affirmatively places the subject  matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of the party’s claim or defense, and application of the privilege would deprive the opposing party of vital information.” (Veras Invs. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370, 373 [lst Dept 20081.) “[That a privileged communication contains information relevant to issues the parties are litigating does not, without more, place the contents of the privileged communication itself ‘at issue’ in the lawsuit; if that were the case, a privilege would have little effect. . . . Rather, ‘at issue’ waiver occurs when the party has asserted a claim or defense that he intends to prove by the use of privileged materials.” (Deutsche Bank Trust Co. of Americas v Tri-Links Inv. Trust, 43 AD3d 56,64 [lst Dept 20071 [internal quotation marks and citations omitted].)"

"It is well settled that “an attorney-client relationship is established where there is an  explicit undertaking to perform a specific task. While the existence of the relationship is not dependent upon the payment of a fee or an explicit agreement, a party cannot create the relationship based on his or her own beliefs or actions.” (Pellegrino v Oppenheimer & Co., 49 AD3d 94,99 1st Dept 20081; Jane St. Co. v. Rosenberg & Estes. P.C., 192 AD2d 451 [lst Dept.], Iv denied 82 NY2d 654 [1993].) An attorney-client relationship may thus exist prior to execution of a formal retainer. Indeed, an attorney-client relationship “can encompass a preliminary consultation even where the prospective client does not ultimately retain the attorney.” (Pellegrino, 49 AD3d at 99.)

Under these circumstances, in which plaintiff retained Epstein Becker to correct Greenberg Traurig’s malpractice and thereby to attempt to avoid a malpractice action, the court cannot find that preliminary consultations, in which malpractice may have been discussed, were undertaken “with a view toward retention” of Epstein Becker for malpractice litigation. (See generally Pellegrino, 49 AD3d at 99.) The court finds, however, that the documentary evidence, including that reviewed b
camera, shows that plaintiff began to consider a malpractice action in earnest after plaintiffs
motion to vacate the unfavorable award was denied by order of this Court (Moskowitz, J.), dated
April 3, 2007. It is undisputed that Mr. Roberts circulated a conflicts check at Epstein Becker,
dated May 30,2007, with himself as the client, and sought to have a client-matter number assigned. (July 5, 2012 ’Tr. at 13-14; P.’s Privilege Log [Ex. I, to Reardon Aff.].) As plaintiff acknowledges, these events coincide with Epstein Becker having “switched” from giving advice
consistent with the continuing arbitration to “direct strategic advice about what to do about a
malpractice claim.” (&July 5,2012 Tr. at 13-14.)"

A potential client comes to the legal malpractice practitioner and says that a good medical malpractice case was lost at trial because of errors by their attorney. They tell you that their expert was precluded, and that the case was lost against all defendants. What’s more, the defendants were permitted to ask hypothetical questions that were not proper. What can you do for me?

In many situations, the facts recited are true, and yet may not be actionable. As an example,in Banister v Marquis ; 2011 NY Slip Op 06544; Appellate Division, Second Department we see the following:
 

"Contrary to the plaintiffs’ contention, the trial court providently exercised its discretion in precluding them from calling an expert radiologist to testify. The proffered explanation for failing to identify this witness until after the trial began was not based on good cause (see CPLR 3101[d][1][i]; Lucian v Schwartz, 55 AD3d 687, 688; Caccioppoli v City of New York, 50 AD3d 1079, 1080). [*2]"

"The trial court should have prohibited counsel for the defendant Belinda Marquis from questioning an expert witness for the plaintiffs about a hypothetical pertaining to the probability of the infant plaintiff having both a pectus carinatum and fibromastosis, as the hypothetical was not based on facts supported by the evidence, nor from facts fairly inferable from the evidence (see Gilleo v Horton Mem. Hosp., 196 AD2d 569, 570). However, the error was harmless (see CPLR 2002; Kropf v New York Hosp., 212 AD2d 761). The trial court’s comments about the hypothetical did not deprive the plaintiffs of a fair trial (see Figueroa v Maternity Infant Care Family Planning Project, Med. & Health Research Assn. of N.Y. City, 243 AD2d 424).

Will preclusion of the expert survive a "judgment call" defense? Can plaintiff prove to a judge’s satisfaction that testimony from that expert would have made a difference? Is it all speculative?

Are the harmless errors a mistake of the attorney, or did he/she make a valiant effort to object, only to be overruled? Obviously the AD felt that there was no "but for" aspect…they found it harmless.

Legal malpractice litigation seems different from all other professional malpractice areas. There seem to be more defenses and hurdles in this lawyer written-lawyer judged-lawyer prosecution area.

The area of estate legal malpractice was seismically upset when the Court of Appeals decided Schneider v. Finmann.  Here, inSobel v Ansanelli  2012 NY Slip Op 06202  Decided on September 19, 2012  Appellate Division, Second Department   we do not see the standing issue.  This decision works its way through a legal malpractice, fraud, breach of fiduciary duty, breach of contract and duress claims.
 

"In August 2005 the decedent, Mary Ellen Malone, retained the defendant Vincent W. Ansanelli and the defendant law firm, Ansanelli, Kugler & Svendsen, LLP, to perform estate planning services, including asset protection, the preparation and filing of an application for Medicaid benefits, and the transfer of the decedent’s cooperative apartment to her daughter, Christina Sobel. At the time the decedent retained the defendants, the alleged total value of her assets was approximately $190,000, and she allegedly had debts of approximately $60,000. More than two years after the decedent’s death, by summons and complaint filed on February 3, 2011, Sobel commenced this action asserting six causes of action alleging, in effect, legal malpractice, breach of contract, breach of fiduciary duty, fraud, and duress. The plaintiff’s breach of fiduciary duty claims, set forth under the first and second causes of action, were premised upon allegations that the defendants had charged excessive legal fees totaling over $44,000 for the protection of the decedent’s relatively modest estate.

Prior to joinder of issue, the defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), and (7). In support of their motion, they submitted, inter alia, copies of invoices allegedly sent to the plaintiff, and argued that these invoices established a defense to some [*2]of the plaintiff’s claims because she had ratified them by retaining them without objection, making partial payment, and signing an agreement promising to pay the balance due. The defendants also submitted a document from the City of New York Human Resources Administration dated July 30, 2008, which indicated that the decedent’s application for Medicaid benefits had been retroactively granted from November 1, 2006, to the date of her death on April 28, 2008. The defendants additionally contended that none of the plaintiff’s claims stated a cause of action, and that the plaintiff’s legal malpractice claim was barred by the statute of limitations. "

Contrary to the defendants’ contention, the Supreme Court properly denied those branches of their motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first and second causes of action alleging, in effect, breach of fiduciary duty premised on the theory that the defendants charged excessive legal fees. A motion to dismiss pursuant to CPLR 3211(a)(1) may be granted "only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v Martinez, 84 NY2d 83, 88; Harris v Barbera, 96 AD3d 904; Parekh v Cain, 96 AD3d 812). To qualify as documentary evidence, printed materials "must be unambiguous and of undisputed authenticity" (Fontanetta v John Doe 1, 73 AD3d 78, 86; see Flushing Sav. Bank, FSB v Siunykalimi, 94 AD3d 807, 808; Yeshiva Chasdei Torah v Dell Equity, LLC, 90 AD3d 746, 746-747). Further, on a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading 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 (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Leon v Martinez, 84 NY2d at 87).

Here, the invoices which the defendants submitted in support of their position that the plaintiff ratified the legal fees charged for services to the decedent were of disputed authenticity and did not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1) (see Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d 1149, 1150; see also Parekh v Cain, 96 AD3d 812; Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997). In any event, the invoices did not conclusively establish, as a matter of law, a defense to the first and second causes of action (see Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d at 1150-1151; see also Cannon v First Natl. Bank of E. Islip, 98 AD2d 704, 705, affd 62 NY2d 1003). Furthermore, the factual allegations in the first and second causes of action are sufficient to state a cause of action sounding in breach of [*3]fiduciary duty (see Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d at 1150). Thus, dismissal of the first and second causes of action pursuant to CPLR 3211(a)(1) and (7) was not warranted.

The Supreme Court properly, in effect, granted that branch of the defendants’ motion which was to dismiss the sixth cause of action alleging, in effect, legal malpractice as time-barred pursuant to CPLR 3211(a)(5) only to the extent of directing dismissal of so much of that cause of action as was predicated upon alleged acts or omissions occurring more than three years prior to the commencement of the action. Dismissal of the sixth cause of action in its entirety as time-barred was not warranted because, to the extent that the plaintiff’s legal malpractice claim is predicated upon the defendants’ alleged failure to protect the value of estate assets consisting of the cooperative apartment, the defendants’ own submissions raise an issue of fact as to whether the continuous representation doctrine tolled the statute of limitations until February 3, 2008, the date of the final invoice for legal services performed in connection with the sale of the apartment (see Golub v Baer, Marks & Upham, 172 AD2d 489, 490; see also Macaluso v Del Col, 95 AD3d 959, 960; Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d 1118, 1120; Howish v Perrotta, 84 AD3d 1312, 1313). Moreover, accepting the facts alleged in the amended complaint as true and according the plaintiff the benefit of every possible inference, the plaintiff’s allegation that the defendants negligently failed to protect the cooperative apartment states a legally cognizable claim to recover damages for legal malpractice (see Magnus v Sklover, 95 AD3d 837; Esposito v Noto, 90 AD3d 825). Accordingly, the Supreme Court also properly denied that branch of the defendants’ motion which was to dismiss the sixth cause of action pursuant to CPLR 3211(a)(7). "

Law firm is retained by A and knows that A and B have a contractural relationship. During the representation A notifies the law firm that if the case is settled some money will be given to B. By the time that the case is actually settled, A rescinds the advice and tells the law firm to give all the money to A and none to B. Does B have a cause of action against the law firm for non-payment?

In Ulu v Turkotrans Intl. Transp. Co., Ltd   ;2011 NY Slip Op 31803(U) ; Sup Ct, NY County; Judge: Barbara R. Kapnick sets the rules:
"Next, the third cause of action for breach of contract alleges that "defendants have breached their agreement to pay the Balance Due to Plaintiff from the Settlement Amount." (Compl. ¶ 34.) Defendant Law Firm argues that if plaintiff is alleging a breach of a contract between himself and the Law Firm, the claim fails because plaintiff never had an agreement directly with the Law Firm with respect to the monies at issue in this case, or any matter relevant thereto, and that plaintiff has not provided any evidentiary support for the existence of such an agreement. If on the other hand, plaintiff is alleging a breach of a contract that existed between himself and Sensoz/Turkotrans, then the defendant argues that the claim cannot stand as against the Law Firm, because the Law Firm was not party to such an agreement. In his motion papers, plaintiff argues that an agreement
existed between plaintiff and the Law Firm, based on a series of emails, which required the Law Firm to transfer a portion of the settlement funds to plaintiff. Plaintiff cites the following deposition testimony of Mr. Vengrow, to show that there was a contract between plaintiff and the Law Firm:

Plaintiff also argues that he performed all of his obligations under the alleged agreement by paying the legal fees and expenses, but that t h e Law Firm failed to perform when it declined to transfer a portion of the settlement funds to him and that he sustained damages as a result. The issue here is whether a contract was actually formed between plaintiff and the Law Firm by virtue of the e-mail
communications between the parties and/or plaintiff’s payment of legal fees. "The elements of a breach of contract claim are formation of a contract between the parties, performance by the plaintiff, the defendant’s failure to perform, and resulting damage (citation omitted) .

The requirements for the formation of a contract are at least two parties with legal capacity to contract, mutual assent to the terms of the contract and consideration. 2 P J I 4:l at 638-39 (2011) ; see also Maas v . Cornell Univ . , 94 NY2d 8 7 , 93-4 (1999)* Consideration exists if
there is "a benefit to the promisor or a detriment to the promisee" and "it is enough that something is promised, done, forborne or suffered by the party to whom the promise is made as consideration for the promise made to him." Weiner v. McGraw-Hill, I n c . , 57 NY2d 458, 464 (1982) (internal citations omitted). In the instant case, the February 28th E-mail is clearly not
a contract between Ulu and the Law Firm; it is a communication from Sensoz to the Law Firm, which confirms Sensoz’s instructions to the Law Firm. To the extent that plaintiff is alleging that there was an o r a l agreement between himself and the Law Firm, the Court rejects this contention as well, finding that Ulu did not receive consideration from the Law Firm for his payment of the legal fees.

There is no evidence that Ulu paid the legal fees in exchange for either (1) a promise that the Law Firm would do something for him; (2) the Law Firm had done something for him; or (3) the Law Firm’s forbearance of any acts. See Weiner v. McGraw-Hill, Inc., supra at 464. Accordingly, the Court finds that the Law Firm has established its entitlement to summary judgment dismissing the
fourth cause of action, insofar as it is pled against it.
 

Attorney fee suits lead to interesting further proceedings. An oft cited piece of advice at CLEs is that attorney fee suits invite legal malpractice counterclaims. Here is one. They do not always succeed. However, was it worth the $6000 fee case?

In Richard A. Kraslow, P.C. v LoGiudice ; 2011 NY Slip Op 50823(U) ; Appellate Term, Second Department. Attorney represented client in a divorce and spouse died during the proceedings. Client then participated in the Surrogate’s court case, and alleges big losses there. "Plaintiff and defendant had executed a retainer agreement, dated January 28, 2002, which governed the legal services rendered during the matrimonial action. They did not execute another retainer agreement for the Surrogate’s Court action. Plaintiff commenced this action to recover damages for breach of contract and unjust enrichment after defendant had failed to pay for the legal services which plaintiff had rendered in connection with the Surrogate’s Court action.

Defendant answered and, in addition to interposing various affirmative defenses, asserted the following counterclaims: first, the matrimonial action and retainer agreement had terminated on April 15, 2002, upon the death of defendant’s wife, whereupon the parties had failed to execute a subsequent agreement; second, plaintiff had failed to timely file a right of election against defendant’s wife’s estate, resulting in damages in the amount of $66,000; third, plaintiff had not challenged the validity of a waiver agreement whereby defendant had disclaimed his status as the sole beneficiary of his wife’s pension benefits, resulting in damages in the amount of $109,000; fourth, plaintiff had improperly advised defendant to stop paying the mortgage on the marital residence, which had resulted in a foreclosure action and damages "in an amount of not
less than $100,000"; fifth, that plaintiff should refund the money that defendant had paid him under the retainer agreement in the amount of $5,090 because the retainer agreement was "legally [*2]deficien[t]"; sixth, plaintiff had been unjustly enriched in the amount of $5,090 because the retainer agreement was "legally deficient"; seventh, that plaintiff should refund the money defendant had paid him after the alleged termination of the retainer agreement in the amount of $6,950; eighth, plaintiff had been unjustly enriched in the amount of $6,950; and ninth, plaintiff was not entitled to damages for any legal services rendered to defendant after April 15, 2002.

Plaintiff moved for summary judgment seeking to dismiss the counterclaims in their entirety. The District Court denied the motion with respect to all the counterclaims except the fourth. Plaintiff appeals from so much of the order as denied the various branches of its motion.

Inasmuch as both the first and ninth counterclaims do not contain a demand for affirmative relief, the District Court should have granted the branches of plaintiff’s motion for summary judgment seeking to dismiss them.

With respect to the second counterclaim, defendant failed to rebut plaintiff’s proof that defendant was unable to establish his legal malpractice action. To succeed on a motion for summary judgment dismissing a counterclaim for legal malpractice, a plaintiff "must demonstrate that the [defendant] is unable to prove at least one of the essential elements of its legal malpractice cause of action" (Boglia v Greenberg, 63 AD3d 973, 974 [2009]; see Kotzian v McCarthy, 36 AD3d 863 [2007]). In response, the defendant is required to show that the plaintiff "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused [the defendant] to sustain actual and ascertainable damages" (Mueller v Fruchter, 71 AD3d 650 [2010] [internal citations omitted]).

Plaintiff submitted a sworn affidavit averring that he had reached a favorable tentative settlement with the estate of defendant’s deceased wife in the amount of
$100,000. In response, defendant failed to proffer any evidence that he had sustained actual and ascertainable damages resulting from plaintiff’s decision to pursue one strategy in the Surrogate’s Court action rather than another (Collard & Roe, P.C. v Vlacancich, 6 Misc 3d 17, 18-19 [App Term, 9th & 10th Jud Dists 2004]). Consequently, the District Court should have dismissed the second counterclaim.

With respect to the third counterclaim, defendant failed to rebut plaintiff’s proof that defendant did not establish that he had signed the waiver of pension benefits under mental duress. Likewise, defendant’s fifth and sixth counterclaims have "no merit" because defendant failed to either rebut plaintiff’s proof that the retainer agreement was legally sufficient or specify any legal theory upon which relief could potentially be granted (Ventura v Fischer, 21 Misc 3d 131[A], 2008 NY Slip Op 52124[U], *2 [App Term, 2d & 11th Jud Dists 2008]; see CPLR 3212 [b]). [*3]

Finally, the District Court should have dismissed the seventh and eighth counterclaims because plaintiff’s alleged violation of 22 NYCRR 1215.1, in and of itself, is not a ground for the disgorgement or refund of already paid attorney’s fees (see Jones v Wright, 16 Misc 3d 133[A], 2007 NY Slip Op 51494[U] [App Term, 9th & 10th Jud Dists 2007]; Constantine Cannon LLP v Parnes, 2010 NY Slip Op 31956[U], *16 [Sup Ct, NY County 2010]).

Accordingly, the order insofar as appealed from, is reversed and the branches of plaintiff’s motion for summary judgment seeking to dismiss defendant’s first, second, third, fifth, sixth, seventh, eighth and ninth counterclaims are granted. "

The Third Department gives a nice analysis of the law of "account stated" in its decision, Antokol & Coffin v Myers ;2011 NY Slip Op 06051 ;Appellate Division, Third Department .
 

""’An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due’" (J.B.H., Inc. v Godinez, 34 AD3d 873, 874 [2006], quoting Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993], lv denied 82 NY2d 660 [1993]). An attorney can recover fees on an account stated "with proof that a bill . . . was issued to a client and held by the client without objection for an unreasonable period of time" (O’Connell & Aronowitz v Gullo, 229 AD2d 637, 638 [1996], lv denied 89 NY2d 803 [1996]).

At trial, plaintiff introduced evidence of a retainer agreement between Antokol and defendant as well as unpaid invoices for legal fees dated between September 1995 and December 1996. Antokol testified that these invoices were ordinarily sent to defendant on a monthly basis and that defendant did not object to the bills until plaintiff commenced this action. Defendant testified that she did not remember receiving monthly bills but, in her prior deposition testimony, acknowledged that she thought she had received a bill most months. Although defendant claimed to have had "constant conversations about the bills" with Antokol, and Antokol admitted that he made efforts to get her to pay, including offering a 10% discount in February 1996, he testified that defendant never offered a reason for her refusal to pay the bills. Indeed, with the exception of one specific objection to work completed by one of Antokol’s colleagues, which defendant ultimately agreed to pay, defendant did not claim to have made objections to any specific bill, despite the language at the end of each bill stating, "The above information will be deemed correct unless objection is made within 30 days." Further, defendant admittedly made no written objections to the bills. Under these circumstances, we agree with Supreme Court that defendant’s general claims of verbal refusals to pay did not constitute a specific objection sufficient to defeat plaintiff’s cause of action for an account stated (see Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000]; J.B.H., Inc. v Godinez, 34 AD3d at 875-876; PPG Indus. v A.G.P. Sys., 235 AD2d 979, 980 [1997]; see also Zanani v Schvimmer, 50 AD3d 445, 446 [2008]). "

"Turning to the adequacy of the services billed for, we agree with Supreme Court that the record demonstrates that plaintiff provided competent representation in a difficult matrimonial matter. Antokol’s failure to establish grounds for divorce in defendant’s favor, albeit clearly a point of frustration for defendant, was irrelevant, as fault did not affect the equitable distribution of marital assets (see Howard S. v Lillian S., 14 NY3d 431, 435-436 [2010]). Defendant’s assertions that Antokol should have presented expert testimony to increase her share of the marital estate and that he was not prepared for trial are counterbalanced by record evidence that Antokol’s decisions were part of his trial strategy and his claims that defendant’s refusal to follow his advice at times interfered with his ability to achieve better results for her. In sum, the record evidence fully supports Supreme Court’s finding that the alleged inadequacies of Antokol’s representation are insufficient to undermine plaintiff’s right to be paid for its services (see Matter of Wapner, Koplovitz & Futerfas v Solomon, 7 AD3d at 916). "
 

Plaintiff is injured while at work as a teacher in NYC and goes to an attorney.  The attorney advises her to bring a Workers’ Compensation Claim, and does so for her.  More than 90 days passes, and lo and behold, it turns out that Teachers in NYC are not covered by WC, and are (must) bring a personal injury claim.  It’s too late for plaintiff.  Is this legal malpractice? 

Supreme Court did not think so.  The Appellate Division, however, did.  Gaskin v Harris   2012 NY Slip Op 06123  Decided on September 12, 2012  Appellate Division, Second Department . 
 

"However, the Supreme Court should not have granted that branch of the defendant’s cross motion which was to pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of action alleging legal malpractice. To recover damages for legal malpractice, a plaintiff is required to show that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney’s breach of this duty caused the plaintiff to suffer actual and ascertainable damages (see Dombrowski v Bulson, 19 NY3d 347, 350; Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; McCoy v Feinman, 99 NY2d 295, 301-302; Gershkovich v Miller, Rosado & Algios, LLP, 96 AD3d 716, 717). When determining a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible [*2]inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 87; Marom v Anselmo, 90 AD3d 622, 623), and "may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" (Leon v Martinez, 84 NY2d at 88; see Berman v Christ Apostolic Church Intl. Miracle Ctr., Inc., 87 AD3d 1094, 1096-1097; Kopelowitz & Co., Inc. v Mann, 83 AD3d 793, 797). Further, a motion pursuant to CPLR 3211(a)(1) may be granted "only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; see Leon v Martinez, 84 NY2d at 88; Robertson v Wells, 95 AD3d 862, 863; Magnus v Sklover, 95 AD3d 837, 837).

Applying these principles here, the complaint, as amplified by the affidavits submitted by the plaintiff, adequately states a cause of action to recover damages for legal malpractice. The plaintiff alleges that the defendant negligently advised her to seek Workers’ Compensation benefits for injuries sustained in the course of her employment as a substitute teacher, when he should have known, as an attorney specializing in this area, that New York City teachers and substitute teachers are not covered by the Workers’ Compensation Law. She further claims that the defendant advised her to pursue a baseless Workers’ Compensation claim instead of litigation, failed to advise her of the deadline for filing a notice of claim, and counseled her against accepting a mediator’s recommended settlement that would have afforded her some compensation for her injuries. Although the documentary evidence submitted by the defendant establishes that he promptly filed a Workers’ Compensation claim on the plaintiff’s behalf, and that the claim was denied on the ground that New York City teachers, including substitute teachers, are not covered by the Workers’ Compensation Law, this evidence does not conclusively establish a defense to the plaintiff’s asserted malpractice claims. Accordingly, the Supreme Court should have denied that branch of the defendant’s cross motion which was to pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of action alleging legal malpractice (see Magnus v Sklover, 95 AD3d at 837; Ofman v Katz, 89 AD3d 909, 910; Thompsen v Baier, 84 AD3d 1062, 1063). "