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Garcia v. Polsky, Shouldice & Rosen, P.C.
Factual and Procedural Background
The plaintiff, Orlando Garcia, commenced an action against the defendant law firm Polsky, Shouldice & Rosen, P.C., and its attorney partners Mark S. Polski, Donald T. Shouldice, and Adam L. Rosen. The complaint alleged legal malpractice and a violation of Judiciary Law § 487. Before answering, the defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). The Supreme Court granted the motion to dismiss the malpractice claims against the individual attorneys and the Judiciary Law § 487 claims against all defendants, but denied dismissal of the legal malpractice claim against the law firm itself. The caption was amended to list only the law firm as the defendant. The law firm appeals from the denial of dismissal of the malpractice claim against it.
Legal Issues Presented
- Whether the plaintiff’s legal malpractice cause of action against the law firm should be dismissed pursuant to CPLR 3211(a)(1) based on documentary evidence conclusively establishing a defense as a matter of law.
- Whether the legal malpractice cause of action against the law firm should be dismissed pursuant to CPLR 3211(a)(7) for failure to state a cause of action.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gould v. Decolator, 121 A.D.3d 845, 994 N.Y.S.2d 368 | Standard for dismissal under CPLR 3211(a)(1): documentary evidence must utterly refute plaintiff’s factual allegations to dismiss. | Used to confirm that documentary evidence submitted by the law firm did not utterly refute the plaintiff’s allegations. |
| Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 746 N.Y.S.2d 858, 774 N.E.2d 1190 | Standard for dismissal under CPLR 3211(a)(7): accept plaintiff’s allegations as true and determine if facts fit any cognizable legal theory. | Applied to assess whether the complaint, supplemented by affidavit, stated a viable legal malpractice claim. |
| Leon v. Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972, 638 N.E.2d 511 | Standards for both CPLR 3211(a)(1) and (7) motions to dismiss. | Referenced for the standards guiding dismissal motions and consideration of affidavits submitted in opposition. |
| Shah v. Exxis, Inc., 138 A.D.3d 970, 31 N.Y.S.3d 512 | Acceptance of facts alleged and favorable inferences on CPLR 3211(a)(7) motions. | Used to reinforce the standard that plaintiff’s allegations must be accepted as true on motion to dismiss for failure to state a cause of action. |
| Cron v. Hargro Fabrics, 91 N.Y.2d 362, 670 N.Y.S.2d 973, 694 N.E.2d 56 | Affidavits may be submitted to preserve potentially meritorious claims on CPLR 3211(a)(7) motions. | Supported the consideration of plaintiff’s affidavit opposing dismissal. |
| Rabos v. R & R Bagels & Bakery, Inc., 100 A.D.3d 849, 955 N.Y.S.2d 109 | When evidentiary material is submitted on a CPLR 3211(a)(7) motion, dismissal is improper unless facts are conclusively disproven. | Applied to find that plaintiff’s material facts were not conclusively disproven. |
| Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 401 N.Y.S.2d 182, 372 N.E.2d 17 | Standard for considering evidentiary materials on dismissal motions. | Referenced to support the principle that dismissal is improper if material facts are disputed. |
| Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 827 N.Y.S.2d 231 | Prediscovery CPLR 3211 motions do not consider whether plaintiff will ultimately prove claims. | Used to clarify that the court’s dismissal decision was made without regard to the ultimate success of the plaintiff’s claims. |
| EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 799 N.Y.S.2d 170, 832 N.E.2d 26 | Similar to Shaya B. Pac., LLC, regarding the scope of dismissal motions. | Reinforced the standard that prediscovery motions do not evaluate ultimate proof. |
| Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 835 N.Y.S.2d 534, 867 N.E.2d 385 | Elements of legal malpractice: duty, breach of ordinary reasonable skill, causation, and damages. | Applied to define the plaintiff’s burden to plead and prove legal malpractice. |
| McCoy v. Feinman, 99 N.Y.2d 295, 755 N.Y.S.2d 693, 785 N.E.2d 714 | Definition of attorney’s duty and breach for legal malpractice claims. | Quoted to establish the standard of care owed by attorneys. |
| Nilazra, Inc. v. Karakus, Inc., 136 A.D.3d 994, 25 N.Y.S.3d 650 | Affidavits may remedy defects in complaint to preserve claims. | Supported consideration of plaintiff’s affidavit opposing dismissal. |
Court's Reasoning and Analysis
The court applied the standards for motions to dismiss pursuant to CPLR 3211(a)(1) and (7). Under CPLR 3211(a)(1), dismissal requires documentary evidence that utterly refutes the plaintiff’s factual allegations and conclusively establishes a defense as a matter of law. The law firm submitted documentary evidence showing its representation was limited to the plaintiff's Workers' Compensation claim, but this evidence did not utterly refute the plaintiff's allegations, which were supported by an affidavit asserting inaccurate legal advice.
Under CPLR 3211(a)(7), the court must accept the facts alleged in the complaint as true and construe them in the plaintiff’s favor to determine if a cognizable legal theory exists. The plaintiff’s complaint, supplemented by affidavit, sufficiently pleaded a legal malpractice claim against the law firm. The evidentiary materials did not show that the plaintiff’s alleged material facts were false or undisputed. Therefore, dismissal was improper on this ground as well.
The court emphasized that whether the plaintiff will ultimately prevail or survive summary judgment is irrelevant at this pre-discovery dismissal stage.
Holding and Implications
The court affirmed the Supreme Court’s order denying dismissal of the legal malpractice cause of action against the law firm Polsky, Shouldice & Rosen, P.C.
The direct effect of this decision is that the plaintiff’s legal malpractice claim against the law firm will proceed. No new legal precedent was established; the court applied well-settled standards for dismissal motions under CPLR 3211.
Abrams Garfinkel Margolis Bergson, LLP, New York, N.Y. (Barry G. Margolis and Alexander Rabinowitz of counsel), for appellant.
William Pager, Brooklyn, NY, for respondent.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, BETSY BARROS, JJ.
DECISION & ORDER
In an action to recover damages for legal malpractice and a violation of Judiciary Law § 487, the defendant appeals from an order of the Supreme Court, Kings County (Debra Silber, J.), dated August 16, 2016. The order, insofar as appealed from, denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of action alleging legal malpractice insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action against the defendant Polsky, Shouldice & Rosen, P.C., a professional corporation practicing law in the State of New York (hereinafter the law firm), and the defendants Mark S. Polski, Donald T. Shouldice, and Adam L. Rosen, attorneys and partners in the law firm. The complaint alleged legal malpractice and a violation of Judiciary Law § 487. Prior to answering, the defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. In the order appealed from, the Supreme Court granted those branches of the defendants' motion which were to dismiss the cause of action alleging legal malpractice insofar as asserted against Polski, Shouldice, and Rosen, and the cause of action alleging a violation of Judiciary Law § 487 against all of the defendants. The court denied that branch of the defendants' motion which was to dismiss the cause of action alleging legal malpractice insofar as asserted against the law firm, and amended the caption to list only the law firm as the defendant. The law firm appeals from so much of the order as denied that branch of the motion.
"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v. Decolator, 121 A.D.3d 845, 847, 994 N.Y.S.2d 368 ; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ).
"On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint 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" ( Shah v. Exxis, Inc., 138 A.D.3d 970, 971, 31 N.Y.S.3d 512 ; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; Leon v. Martinez, 84 N.Y.2d at 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). "In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims" ( Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366, 670 N.Y.S.2d 973, 694 N.E.2d 56 [internal quotation marks omitted]; see Nilazra, Inc. v. Karakus, Inc., 136 A.D.3d 994, 995, 25 N.Y.S.3d 650 ). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ( Rabos v. R & R Bagels & Bakery, Inc., 100 A.D.3d 849, 851–852, 955 N.Y.S.2d 109 ; see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 274–275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ).
"Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" ( Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38, 827 N.Y.S.2d 231 ; see EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 ).
"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the 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 proximately caused plaintiff to sustain actual and ascertainable damages" ( Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385, quoting McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 ). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence" ( Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 ).
Here, the law firm submitted documentary evidence in support of the motion establishing that its representation of the plaintiff was limited to his Workers' Compensation claim. That submission did not utterly refute the plaintiff's allegations, as augmented by his affidavit submitted in opposition to the motion, that the law firm gave him inaccurate legal advice. Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action alleging legal malpractice insofar as asserted against the law firm.
Moreover, the complaint, as augmented by the plaintiff's affidavit, sufficiently pleaded a cause of action to recover damages for legal malpractice against the law firm. The evidentiary submissions did not show that the material facts claimed by the plaintiff to be facts were not facts at all and that no significant dispute exists regarding them. Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging legal malpractice insofar as asserted against the law firm.
LEVENTHAL, J.P., COHEN, MALTESE and BARROS, JJ., concur.
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