Anderson v. Armentano

• Decision Date: 11 May 2016
• Docket Number: 2015-03500, Index No. 25673/13.
• Parties: Thomas E. ANDERSON, respondent, v. William V. ARMENTANO, etc., defendant, Grey & Grey, LLP, appellant.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 769
33 N.Y.S.3d 294
2016 N.Y. Slip Op. 03690

Thomas E. ANDERSON, respondent,
v.
William V. ARMENTANO, etc., defendant,

Grey & Grey, LLP, appellant.

2015-03500, Index No. 25673/13.

Supreme Court, Appellate Division, Second Department, New York.

May 11, 2016.

33 N.Y.S.3d 295

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Amy M. Monahan and Jake Bedor of counsel), for appellant.

Arnold E. DiJoseph, P.C., New York, N.Y. (Arnold E. DiJoseph III of counsel), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.

139 A.D.3d 769

In an action to recover damages for legal malpractice, the defendant Grey & Grey, LLP, appeals from an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated January 16, 2015, which denied its motion pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

On September 17, 2010, the plaintiff allegedly was injured when he fell into a trench at the Hicksville Parking Facility, which was owned by the Town of Oyster Bay, while performing

139 A.D.3d 770

construction work for his employer. After the incident, the plaintiff sought legal representation from the defendant Grey and Grey, LLP (hereinafter G & G), and another attorney with respect to potential claims arising from the accident. On November 17, 2010, G & G and the plaintiff executed a New York State Workers' Compensation Board “Notice of Retainer and Appearance–Additional Attorney,” which indicated that G & G had been retained to represent the plaintiff “in all proceedings concerning my claim.”

Neither G & G nor the other attorney filed a timely notice of claim against the Town. Although the plaintiff commenced a proceeding for leave to file a late notice of claim against the Town which the Supreme Court granted, this Court reversed the order granting the petition and dismissed the proceeding (see Matter of Anderson v. Town of Oyster Bay, 101 A.D.3d 708, 955 N.Y.S.2d 183 ).

The plaintiff then commenced this action to recover damages for legal malpractice against G & G and the other attorney. Prior to answering, G & G moved pursuant

33 N.Y.S.3d 296

to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it on the basis that documentary evidence established that it had been engaged by the plaintiff only with respect to his Workers' Compensation claim. The Supreme Court denied G & G's motion. G & G appeals.

“On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff's allegations are accepted as true and accorded the benefit of every possible favorable inference” (Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 996, 913 N.Y.S.2d 668 ; see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). “A motion to dismiss a complaint based upon documentary evidence ‘may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law’ ” (Stein v. Garfield Regency Condominium, 65 A.D.3d 1126, 1128, 886 N.Y.S.2d 54, quoting 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 ; see Held v. Kaufman, 91 N.Y.2d 425, 430–431, 671 N.Y.S.2d 429, 694 N.E.2d 430 ; Parekh v. Cain, 96 A.D.3d 812, 815, 948 N.Y.S.2d 72 ; Sato Constr. Co., Inc. v. 17 & 24 Corp., 92 A.D.3d 934,...