New York, and especially Manhattan are breeders for real estate legal malpractice litigation. High value real estate transactions, and the variety/complexity of those transactions inevitably lead to legal malpractice cases, each with its own very high value. 35 W. 26th St. Realty, LLC v Norris, McLaughlin, & Marcus, P.C. 2023 NY Slip Op 31851(U) June 2, 2023 Supreme Court, New York County Docket Number: Index No. 155004/2022 Judge: Lori S. Sattler is a fine example.

“Plaintiff 35 West 26th Street Realty, LLC (“Plaintiff”) is a real estate company that owns
a five-story building located at that address (“the building”) with a sole owner and officer, Osman Bessa. It seeks to recover damages purportedly caused by Defendants’ negligent representation in an administrative proceeding before the New York Loft Board. Nonparty Norris McLaughlin is a law firm and Proefriedt is an attorney there.
Plaintiff purchased the building in 2002. At the time, the building had been subject to the Loft Law and the Loft Board’s jurisdiction for nearly 20 years. As set forth in the papers, the In 1985, a tenant harassment finding was issued against a previous owner of the building concerning, inter alia, conditions in the building’s second and fifth floor units. The tenant harassment finding remained in effect at the time Plaintiff purchased the building, although Bessa contends he was unaware of it.

Plaintiff alleges that it retained Defendants in 2007 to remove the building from the Loft
Board’s jurisdiction and deregulate its units. It maintains that Proefriedt was held out by Norris McLaughlin as having “considerable experience in matters related to the Loft Board” and that Proefriedt had represented the building’s previous owner (NYSCEF Doc. No. 8, Complaint ¶¶ 24-26). According to Plaintiff, at Proefriedt’s recommendation, it bought out the tenants of the second floor and fifth floor units in 2007 and 2014 respectively. Plaintiff maintains these purchases were made so that the units could be deregulated and rented at the prevailing market rate pursuant to Section 286(12) of the Loft Law. To that end, Bessa allegedly executed sale of rights records under the Loft Law on behalf of Plaintiff at Proefriedt’s instruction. Proefriedt then filed these forms with the Loft Board on June 15, 2016.”

““A legal malpractice claim accrues ‘when all the facts necessary to the cause of action
have occurred and an injured party can obtain relief in court’” (McCoy v Feinman, 99 NY2d 295, 301 [2002], quoting Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994]). “In most cases, this accrual time is measured from the day an actionable injury occurs, even if the aggrieved party is ignorant of the wrong or injury” (id. [citation omitted]). An actionable injury has been found to have occurred when a plaintiff’s damages become “sufficiently calculable to permit [the] plaintiff to obtain prompt judicial redress” (id. at 306; see also Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman, LLP, 188 AD3d 530, 531 [1st Dept 2020], quoting McCoy, 99 NY2d at 301, citing King Tower Realty Corp. v G & G Funding Corp., 163 AD3d 541 [2d Dept 2018]).

Defendant meets its prima facie burden of showing that the statute of limitations for
malpractice expired before Plaintiff commenced this action. It annexes to its moving papers a copy of the June 24, 2016 Loft Board letter to Plaintiff stating that the harassment finding remained in place and the second and fifth floor units were still subject to rent regulation under the Loft Law (NYSCEF Doc. No. 9). It also submits a January 25, 2017 invoice sent to Bessa by Norris McLaughlin for Proefriedt’s legal services containing an entry for November 16, 2016 that states “Finalize application” (NYSCEF Doc. No. 10). These documents establish, prima facie, that any purported malpractice in failing to apply for a termination of the harassment finding took place in 2016 when the applications were submitted and that any future attempts to raise the units’ rents to fair market value would fail unless the harassment finding was removed.

Plaintiff fails to aver any evidentiary facts indicating that the statute of limitations had not expired at the time it commenced this action or that otherwise create a question of fact as to whether this action was timely (see MTGLQ Invs., LP, 172 AD3d at 644). It annexes to its opposition an affidavit from Bessa and copies of emails between Bessa and Proefriedt from June and July 2016 (NYSCEF Doc. Nos. 15, 17-18). The affidavit, which merely reiterates Plaintiff’s argument that Bessa was unaware of the June 24, 2016 Loft Board letter, only asserts that Bessa believed Proefriedt “learned about the determination in the summer of 2016” and “likely delayed” the final application to the Loft Board by several months to cover up his failure to have the harassment finding terminated (Bessa aff ¶¶ 19, 25). Neither these speculatory assertions nor
the 2016 emails between Bessa and Proefriedt create an issue of fact as to whether Plaintiff’s alleged damages only became ascertainable in October 2019 or the malpractice cause of action otherwise accrued at a later date. The Court therefore finds that the statute of limitations accrued on August 8, 2019.

Plaintiff also fails to create an issue of fact as to whether the statute of limitations was
tolled because it was continuously represented by Defendants between the 2016 removal application filings and the 2019 Loft Board final order. Under the continuous representation doctrine, the statute of limitations for legal malpractice is tolled “only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (McCoy, 99 NY2d at 306; Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]). The continuous representation toll ends upon the conclusion of the matter or upon the attorney’s withdrawal from representation (see Shumsky, 96 NY2d at 170-171; Williamson ex rel. Lipper
Convertibles, L.P. v PricewaterhouseCoopers LLP, 9 NY3d 1, 9-1). An attorney’s withdrawal can be inferred where, for instance, the attorney ceases to respond to the plaintiff’s attempts at communication (cf. Shumsky, 96 NY2d at 170-171; Champlin v Pellegrin, 111 AD3d 411 [1st Dept 2013] [13-year gap in communication put plaintiff on notice that representation had terminated]).”

North Flatts LLC v Belkin Burden Goldman, LLP 2023 NY Slip Op 02954 Decided on June 01, 2023 Appellate Division, First Department very quickly affirms a denial of summary judgment on two grounds. One was a premature motion for summary judgment was improper and the second was that no expert opinion was offered in support of defendant’s argument.

“In this legal malpractice action, plaintiff alleges that defendant, in connection with its representation of plaintiff in the legalization of an interim multiple building for residential use, negligently failed to seek a time extension to achieve compliance with the safety and fire protection standards of article 7-B of the Multiple Dwelling Law, thereby prohibiting plaintiff from legally collecting rent from its tenants pending its receipt of a final residential certificate of occupancy (see Multiple Dwelling Law art 7-C). Defendant did not satisfy its prima facie burden of establishing its entitlement to summary judgment dismissing the complaint as a matter of law, as defendant failed to submit an expert opinion demonstrating that it did not perform below the ordinary reasonable skill and care possessed by an average member of the legal community (see Suppiah v Kalish, 76 AD3d 829, 832 [1st Dept 2010]). Defendant contends that it had timely filed an article 7-B compliance form on plaintiff’s behalf in reliance on the certification of plaintiff’s architect, and that the filing of that form prohibited it from seeking a time extension to achieve article 7-B compliance. However, it has not submitted an expert affidavit establishing that its reliance on the architect’s opinion was reasonable under the circumstances, or explaining how defendant was prohibited from withdrawing the filed form and seeking a time extension to comply with article 7-B. Moreover, absent an expert affidavit, defendant failed to establish prima facie that its alleged negligence in its the handling of the article 7-B compliance form was not a proximate cause of plaintiff’s losses (see id.).

In any event, the court properly denied the prediscovery motion as premature, given plaintiff’s showing that facts essential to justify opposition to defendant’s motion may lie within defendant’s exclusive knowledge or control (see CPLR 3212[f]; Lyons v New York City Economic Dev. Corp., 182 AD3d 499, 499-500 [1st Dept 2020]). In response to defendant’s claim that it was not aware of potential issues with the architect’s certification of compliance until the August 2021 conference, after the May 2021 deadline to apply for an extension had expired, plaintiff pointed out that its tenants had disputed the architect’s compliance opinion as early as January 2021. Discovery is necessary to shed light on when defendant knew of a potential problem with the filed article 7-B compliance form, and whether defendant could have timely withdrawn that form and sought a timely extension to achieve compliance.”

Floral Park Ophthalmology, P.C. v Ruskin Moscou Faltischek, LLP 2023 NY Slip Op 2863
Decided on May 31, 2023 Appellate Division, Second Department shows how the courts take a deep dive into attorney defenses to legal malpractice claims. With a vigor not found in other areas of negligence, attorney defenses to legal malpractice are scrutinized and applied against plaintiffs.

“In February 2019, the plaintiffs commenced this action against the defendants, former counsel to the plaintiffs, inter alia, to recover damages for legal malpractice. The plaintiffs alleged, among other things, that the defendants committed legal malpractice in their representation of the plaintiffs in a breach of contract action commenced by the plaintiffs against a nonparty medical billing services provider (hereinafter the underlying action) and, with respect to the plaintiff Lawrence F. Jindra, in a “disability insurance claim matter.” According to the plaintiffs, the defendants pressured the plaintiffs to “drop” the underlying action. The plaintiffs also alleged, inter alia, that the defendants, through legal nonfeasance, caused Jindra’s disability insurance policy to lapse. Thereafter, the defendants moved to dismiss the complaint based on documentary evidence, the expiration of the statute of limitations, and the failure to state a cause of action. As is relevant to the appeal, by order entered December 11, 2019, the Supreme Court granted that branch of the defendants’ motion which was to dismiss the cause of action alleging legal malpractice. The plaintiffs appeal.”

“

Here, the plaintiffs failed to plead that, but for the defendants’ negligence, they would have prevailed in the underlying action (see Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 813). To the contrary, as noted by the Supreme Court, it is uncontroverted that the plaintiffs settled the underlying action in order to avoid potential criminal liability for fraud. To the extent that the complaint alleged that the plaintiffs would have fared better at trial or in the settlement, the allegations in the complaint were conclusory and lacked factual support (see Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506). The plaintiffs’ “hindsight criticism of counsels’ reasonable course of action . . . does not rise to the level of legal malpractice” (Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d at 758 [citation and internal quotation marks omitted]).

With respect to so much of the cause of action alleging legal malpractice as it relates to Jinder’s disability insurance claim matter, the plaintiffs also failed to set out the elements of a legal malpractice cause of action, including omitting certain basic factual information such as any allegations that the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by any member of the legal profession and damages (see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 812). Moreover, the defendants established that, to the extent that the cause of action alleging legal malpractice was predicated upon Jindra’s disability insurance claim matter, it was barred by the applicable statute of limitations (see Webster v Sherman, 165 AD3d 738, 741; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735).”

We believe (based on anecdotal reading of legal malpractice decisions) that a more than expected number of summary judgment motions are granted in favor of attorneys in legal malpractice settings. Gardner v Sacco & Fillas, LLP 2023 NY Slip Op 02865
Decided on May 31, 2023 Appellate Division, Second Department is an example of the contrary finding: affirmance in favor of the client and a very short decision as well. The takeaway when the Appellate Division says that the attorneys failed to submit sufficient evidence is that they really did not like the attorney’s position one bit.

“In September 2014, the plaintiff commenced this action against, among others, the defendants Sacco & Fillas, LLP, Tonino Sacco, Elias N. Fillas, and Lamont Rodgers (hereinafter collectively the Sacco defendants), inter alia, to recover damages for legal malpractice, alleging that he incurred damages as a result of the Sacco defendants’ failure to timely file a personal injury action on his behalf. The Sacco defendants moved for summary judgment dismissing the complaint insofar as asserted against them. In an order entered September 1, 2020, the Supreme Court, among other things, denied the Sacco defendants’ motion. The Sacco defendants appeal.”

“Here, the Supreme Court properly denied the Sacco defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them. The Sacco defendants failed to submit evidence establishing, prima facie, the absence of at least one essential element of the legal [*2]malpractice cause of action (see Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 197 AD3d at 545; Fricano v Law Offs. of Tisha Adams, LLC, 194 AD3d 1016, 1018; Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 152 AD3d 650, 652; Atiencia v Pinczewski, 148 AD3d 860, 861). Since the Sacco defendants failed to make their prima facie showing, we do not need to consider the sufficiency of the plaintiff’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).”

Federal Ins. Co. v Lester Schwab Katz & Dwyer, LLP 2022 NY Slip Op 07149 [211 AD3d 527] December 15, 2022 Appellate Division, First Department shows what happens when large local (but not necessarily Big Law) firms handle litigation matters and have conflicts.

“Supreme Court correctly denied LSKD’s motion to dismiss the cause of action for legal malpractice. The verified complaint sufficiently alleges specific facts from which, if true, a factfinder could reasonably infer that, but for LSKD’s alleged negligence in conducting the insureds’ defense in the underlying action, plaintiff insurer would have achieved a better result in that litigation than the $4 million settlement to which it ultimately agreed. Stated otherwise, the question of proximate cause is not resolvable on this motion to dismiss (see Schroeder v Pinterest Inc., 133 AD3d 12, 26 n 7 [1st Dept 2015]).

The causes of action for fraud and negligent misrepresentation, however, should have been dismissed pursuant to CPLR 3211 (a) (1). Both of these claims are based on the contention that LSKD obtained its assignment to defend the insureds in the underlying action by misrepresenting or omitting to disclose the fact that it had a conflict of interest as to the City of New York, a codefendant in the underlying action. This conflict prevented LSKD from pursuing a cross claim against the City, to the detriment of the insureds and their insurers. The theory that LKSD misrepresented or failed to disclose the existence of the conflict is conclusively refuted by documentary evidence, specifically, an April 16, 2013 email from LSKD to, inter alia, the claims adjuster who retained it, plainly stating: “As discussed, we will accept this new assignment with the understanding that we will not assert cross claims against the City of New York. Our firm represents the City of New York in other matters and we are conflicted from asserting claims against them.”

In the context of the foregoing express disclosure of the conflict and consequent inability of LKSD to pursue a cross claim against the City, the communication of the same date that a search for possible conflicts had yielded negative results was not misleading. To the extent plaintiff contends that LKSD inaccurately minimized the viability of a potential cross claim against the City, the complaint fails to allege particularized facts that this advice was given with deceptive intent so as to support a fraud claim.”

Alford v Katz 2022 NY Slip Op 05397 [208 AD3d 1587] September 30, 2022 is the
Appellate Division, Fourth Department’ guidance on when and how a decedent’s estate can sue for legal malpractice.

“Memorandum: Plaintiff commenced this legal malpractice action as executor of and on behalf of the estate of her father, Robert J. Genco (decedent), alleging that defendants were negligent in the drafting of decedent’s will. In 2006, and before decedent and his wife were married, they entered into a prenuptial agreement that provided that decedent’s wife waived any rights to decedent’s retirement and deferred compensation accounts, and decedent’s will would include a $1 million qualified terminal interest property trust (QTIP trust) for his wife’s benefit. In 2007, decedent executed a will that included the QTIP trust bequest. In 2015, decedent changed the designation on his retirement accounts to designate his wife as the primary beneficiary of contributions decedent made after the date of their marriage and, in 2017, he signed a will that was prepared by defendants. In that will, decedent bequeathed to his wife $1 million, reduced by testamentary substitutes including retirement accounts for which she was the beneficiary, but there was no bequest for a QTIP trust. After decedent died, his wife filed a claim against his estate pursuant to SCPA 1803, claiming that she was entitled to, inter alia, $1 million to fund the QTIP trust and, when that claim was rejected, decedent’s wife commenced an action against plaintiff as executor of decedent’s estate. Plaintiff then commenced this action, alleging that defendants negligently drafted the 2017 will. Specifically, in this action plaintiff alleges that decedent changed the beneficiary designation on his retirement accounts in exchange for his wife’s waiver of her right under the prenuptial agreement to receive the QTIP trust, but defendants negligently failed to have decedent’s wife execute a written amendment and/or waiver to the prenuptial agreement.”

“Contrary to defendants’ contention, plaintiff, as the personal representative of decedent’s estate, may bring a claim for legal malpractice alleging that defendants were negligent in the estate planning for decedent (see Estate of Schneider v Finmann, 15 NY3d 306, 309-310 [2010]). “Damages in a legal malpractice case are designed ‘to make the injured client whole’ ” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 443 [2007], quoting Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 42 [1990]), and defendants failed to meet their initial burden of establishing that decedent’s estate did not sustain any damages or that any damages were speculative (cf. Leeder v Antonucci, 195 AD3d 1592, 1593 [4th Dept 2021]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).”

Stevens v Wheeler 2023 NY Slip Op 02747 Decided on May 18, 2023 Appellate Division, First Department is the rare Estate legal malpractice case that survives a dismissal motion. It adequately demonstrates standing, proximate damages and that “but for” the choice of law provision, there would have been a better outcome for the Estate. A defense of strategy is rejected as “bare.”

“Plaintiffs, as co-executors of the decedent’s estate, essentially claim that defendants negligently failed to include a New York choice of law provision in decedent’s will and negligently recommended that decedent’s will be probated in Rhode Island rather than New York. According to plaintiffs, this resulted in decedent’s wife claiming an elective one-half share of the net estate under Rhode Island law, rather than the one-third of his net estate that decedent had bequeathed to her in his will. Decedent’s wife’s elective share claim was ultimately settled by stipulation.

Plaintiffs’ legal malpractice cause of action should not have been dismissed under CPLR 3211 (a) (1) or CPLR 3211 (a) (7) (see generally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). The complaint adequately pleaded departure from the standard of care, i.e., failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and proximate cause. Defendants did not establish, as a matter of law, that probate would have been the same regardless of whether the will contained a New York choice of law provision or whether probate was sought in New York instead of Rhode Island. Defendants’ overarching position, that decedent’s wife did not have a statutory right to decline decedent’s bequest and elect to receive one-half of decedent’s net estate under Rhode Island law, is incorrect (RI Gen Laws §§ 33-1-10, 33-28-1, 33-28-4 [a]). Defendants’ bare assertion, that their recommendation of Rhode Island as the probate forum was a reasonable strategic decision under the circumstances, is not persuasive at this stage of the case (see RTW Retailwinds, Inc. v Colucci & Umans, 213 AD3d 509, 510 [1st Dept 2023]).

The settlement of the wife’s elective share claim does not utterly refute plaintiffs’ allegations of proximate cause because the complaint supports the inference that the settlement was effectively compelled by defendants’ malpractice (see Bernstein v Oppenheim & Co., 160 AD2d 428, 429-430 [1st Dept 1990]). Although the complaint does not allege any cognizable pecuniary damage to decedent’s estate, plaintiff Hardie Stevens’s affidavit corrects that deficiency by identifying several categories of damages to the estate, including increased taxes and legal fees (see Estate of Schneider v Finmann, 15 NY3d 306, 309-310 [2010]; Rudolf, 8 NY3d at 443; Leon v Martinez, 84 NY2d 83, 88 [1994]). Defendants’ remaining arguments relating to damages are not persuasive on [*2]this 3211 motion.

Pioneer Bank v Teal, Becker & Chiaramonte, CPAs, P.C.
2022 NY Slip Op 22316 [77 Misc 3d 360] October 4, 2022
Platkin, J Supreme Court, Albany County doesn’t decide any motions to dismiss, other than to direct that the issue be decided on a full summary judgment motion. What is interesting is the discussion of the differences and procedures of dispositive motions.

“Analysis

CPLR 3211 (a) (7) allows a party to move for dismissal on the ground that “the pleading fails to state a cause of action.” Such a motion may be made “[a]t any time” (CPLR 3211 [e]).

On a motion to dismiss made pursuant to CPLR 3211 (a), including a motion to dismiss for failure to state a claim under CPLR 3211 (a) (7), “either party may submit any evidence that could properly be considered on a motion for summary judgment,” including documentary evidence and affidavits (CPLR 3211 [c]). “Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (id.).

Here, defendants moved under “[CPLR] 3211(a) (7) and 3211(c)” (NYSCEF Doc No. 24), thus inviting conversion of their motion into one for summary judgment. However, the court has not converted the motion, and it will not do so. As defendants were advised at the January 2022 conference, if they wanted their motion treated as one for summary judgment, they needed to move for summary judgment. Accordingly, the court has before it an unconverted, post-answer motion for dismissal under CPLR 3211 (a) (7).

As Pioneer observes, the Appellate Division, Third Department recently summarized the principles governing determination of such a motion. As well-articulated by Presiding Justice Garry,

“[t]he grounds for dismissal under CPLR 3211 (a) (7) are . . . strictly limited; the court is not allowed to render a determination upon a thorough review of the relevant facts adduced by both parties, but rather is substantially more constrained in its review, examining only the plaintiff’s pleadings and affidavits” (Carr v Wegmans Food Mkts., Inc., 182 AD3d 667, 668 [3d Dept 2020]; see John R. Higgitt, CPLR 3211 [a] [7]: Demurrer or Merits-Testing Device?, 73 Alb L Rev 99, 109 [2009]).

“In contrast to a motion for summary judgment, a court resolving a motion to dismiss for failure to state a claim cannot base the determination upon submissions by the defendant—{**77 Misc 3d at 364}without regard to how compelling claims made in such submissions may appear” (Carr, 182 AD3d at 668 [citations omitted]). “Unless the motion to dismiss is converted by the court to a motion for summary judgment, a motion to dismiss is not in a posture to be resolved as a matter of law” (id. at 669 [internal quotation marks, brackets and citations omitted]).

In so ruling, the Third Department relied on the Court of Appeals’ decision in Miglino v Bally Total Fitness of Greater N.Y., Inc. (20 NY3d 342 [2013]), which declined to dismiss a negligence action under CPLR 3211 (a) (7) based on the defendant’s affidavit. The Court of Appeals explained that the

“matter [came to it] on a motion to dismiss, not a motion for summary judgment. As a result, the case is not currently in a posture to be resolved as a matter of law on the basis of the parties’ affidavits, and [plaintiff] has at least pleaded a viable cause of action” (id. at 351).

The Court of Appeals further emphasized that CPLR 3211 (a) (7) limits a court “to an examination of the pleadings to determine whether they state a cause of action,” obliges the court to “accept facts alleged [in plaintiff’s complaint] as true and interpret them in the light most favorable to plaintiff,” and protects the plaintiff from “be[ing] penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face” (id.).

Contrary to defendants’ argument in reply, nothing in the Third Department’s decision in Zeppieri v Vinson (190 AD3d 1173 [3d Dept 2021]) alters the mode of analysis for CPLR 3211 (a) (7) motions articulated in Carr. The Third Department’s decision in Zeppieri rejected the argument [*4]that Carr “limit[ed] what may be considered as documentary evidence” (Zeppieri, 190 AD3d at 1175 n), but that discussion pertained to the branch of the dismissal motion brought under CPLR 3211 (a) (1) (see Carr, 182 AD3d at 668). Defendants’ motion is not made under CPLR 3211 (a) (1), and their time in which to raise “a defense . . . founded upon documentary evidence” under that provision expired with service of their answer (see CPLR 3211 [e]).

Nor did defendants move under CPLR 3211 (a) (5) to interpose the defense of the partial expiration of the statute of limitations, and their time in which to do so similarly has expired (see CPLR 3211 [e]). To be sure, defendants preserved the defense in their answer (see id.; see also answer ¶ 156), {**77 Misc 3d at 365}thereby affording them the opportunity to move for summary judgment on the defense or present it at trial (see DeSanctis v Laudeman, 169 AD2d 1026, 1027 [3d Dept 1991] [“although we agree that the issue was properly preserved by defendant, . . . because responsive pleadings were served, defendant’s motion should have been brought pursuant to CPLR 3212 instead of pursuant to CPLR 3211”]; see also CPLR 3212 [c] [contemplating motions for summary judgment “on . . . the grounds enumerated in subdivision (a) or (b) of rule 3211”]).

The court therefore concludes that defendants’ fact-based causation defense and their partial challenge to the timeliness of Pioneer’s claims should, at this juncture, be the subject of a properly supported motion for summary judgment under CPLR 3212, not a motion for dismissal under CPLR 3211 (a) (7) accompanied by an invitation for conversion under CPLR 3211 (c).

In reaching this conclusion, the court recognizes that the Court of Appeals left open the possibility that a defendant may obtain dismissal under CPLR 3211 (a) (7) through the submission of “conclusive” affidavits and evidence (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976] [“affidavits submitted by the defendant will seldom if ever warrant the relief (it) seeks unless too the affidavits establish conclusively that plaintiff has no cause of action”]), and the other Judicial Departments take a more expansive view of CPLR 3211 (a) (7) (see e.g. Doe v Intercontinental Hotels Group, PLC, 193 AD3d 410, 410 [1st Dept 2021]).

But this court is obliged to follow the Third Department’s recent precedent in Carr, which teaches that “a court resolving a motion to dismiss for failure to state a claim cannot base the determination upon submissions by the defendant,” no matter “how compelling claims made in such submissions may appear” (182 AD3d at 668-669).

Moreover, there are sound reasons for requiring motions like the one made here by defendants to be brought under CPLR 3212. Defendants’ approach needlessly deprives the court of useful procedural tools associated with summary judgment motions, including the requirement that parties supply statements of material facts (see Rules of Commercial Div of Sup Ct [22 NYCRR] § 202.70 [g] [rule 19-a]; see also 22 NYCRR 202.8-g).

An evidence-based motion to dismiss under CPLR 3211 (a) (7) also injects needless uncertainty and delay into the motion{**77 Misc 3d at 366} practice,^[FN1] and may allow litigants to evade the proscription [*5]against successive summary judgment motions (see Amill v Lawrence Ruben Co., Inc., 117 AD3d 433, 433 [1st Dept 2014]; see also CPLR 3211 [e] [“no more than one (3211) motion shall be permitted”]).

In sum, defendants do not challenge the legal sufficiency of Pioneer’s claim for accounting malpractice, and their unconverted, post-answer CPLR 3211 (a) (7) motion is not an appropriate procedural vehicle by which to interpose a fact-based causation defense or assert the partial expiration of the statute of limitations.

Based on the foregoing, defendants’ motion is denied, without regard to the substantive arguments sought to be made therein and without prejudice to the eventual filing of a proper motion for summary judgment under CPLR 3212.^[FN2]“