Attallah v. Milbank, Tweed, Hadley & McCloy, LLP

• Decision Date: 30 January 2019
• Docket Number: 2016–00955,Index No. 606650/14
• Citation: 93 N.Y.S.3d 353,168 A.D.3d 1026
• Parties: Ahdy ATTALLAH, Appellant, v. MILBANK, TWEED, HADLEY & MCCLOY, LLP, Respondent.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 1026

93 N.Y.S.3d 353

Ahdy ATTALLAH, Appellant,

v.MILBANK, TWEED, HADLEY & MCCLOY, LLP, Respondent.

2016–00955

Index No. 606650/14

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

Submitted—October 4, 2018

January 30, 2019

Ahdy Attallah, Roslyn Heights, NY, appellant pro se.

Milbank, Tweed, Hadley & McCloy, LLP, New York, N.Y. (Thomas A. Arena, Rachel Penski Fissell, and Benjamin E. Sedrish of counsel), respondent pro se.

MARK C. DILLON, J.P., BETSY BARROS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

In 2011, the defendant agreed to assist the plaintiff on a pro bono basis, in a very limited fashion, regarding the plaintiff's expulsion in 2010 from the New York College of Osteopathic Medicine. To that end, the parties executed a letter of engagement dated July 7, 2011. The letter of engagement provided, in relevant part, that: "Our services will include all activities necessary and appropriate in our judgment to investigate and consider options that may be available to urge administrative reconsideration of your dismissal from the New York College of Osteopathic Medicine (the ‘College’). This engagement does not, however, encompass any form of litigation or, to the extent ethically prohibited in this circumstance, the threat of litigation, to resolve this matter. This engagement will end upon your re-admittance to the College or upon a determination by the attorneys working on this matter that no non-litigation mechanisms are available to assist you. The scope of the engagement may not be expanded orally or by conduct; it may only be expanded by a writing signed by our Director of Public Service."

Despite the defendant's non-litigation efforts, the College refused to reconsider the plaintiff's dismissal. Thereafter, the plaintiff commenced this action against the defendant to recover damages for breach of fiduciary duty, legal malpractice, and violations of Executive Law § 296, the New York Administrative Code, and the New York Corrections Law. The defendant moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. The Supreme Court granted the defendant's motion, and the plaintiff appeals.

In an action to recover damages for legal malpractice, a plaintiff must 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 professional duty caused the plaintiff's actual damages" ( McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714 [internal quotation marks omitted]; see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 835 N.Y.S.2d 534, 867 N.E.2d 385 ; Guayara v. Harry I. Katz, P.C., 83 A.D.3d 661, 920 N.Y.S.2d 401 ; Alizio v. Feldman, 82 A.D.3d 804, 918 N.Y.S.2d 218 ). When determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, "the pleading is to be given a liberal construction, the allegations contained within it are assumed to be true and the plaintiff is to be afforded every favorable inference" ( Simkin v. Blank, 19 N.Y.3d 46, 52, 945 N.Y.S.2d 222, 968 N.E.2d 459 ; see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Hershco v. Gordon & Gordon, 155 A.D.3d 1007, 1008, 66 N.Y.S.3d 37 ; Kempf v. Magida, 37 A.D.3d 763, 832 N.Y.S.2d 47 ). At the same time, however, "allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration" ( Maas v. Cornell Univ., 94 N.Y.2d 87, 91, 699 N.Y.S.2d 716, 721 N.E.2d 966 [internal quotation marks omitted]; see Myers v. Schneiderman, 30 N.Y.3d 1, 62 N.Y.S.3d 838, 85 N.E.3d 57 ; Sweeney v. Sweeney, 71 A.D.3d 989, 991, 898 N.Y.S.2d 560 ).

A motion to dismiss a complaint based on 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" ( 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 Stein v. Garfield Regency Condominium, 65 A.D.3d 1126, 1128, 886 N.Y.S.2d 54 ). To qualify as documentary evidence, the evidence "must be unambiguous and of undisputed authenticity" ( Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569 ; see Flushing Sav. Bank, FSB v. Siunykalimi, 94 A.D.3d 807, 808, 941 N.Y.S.2d 719 ). In order to succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence relied on by the defendant—here, the parties' letter of engagement dated July 7, 2011—must conclusively establish a defense to the causes of action asserted by the plaintiff as a matter of law (see Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Guayara v. Harry I. Katz, P.C., 83 A.D.3d at 662, 920 N.Y.S.2d 401 ).

We agree with the Supreme Court's determination granting the defendant's motion to dismiss the amended complaint. Contrary to the plaintiff's contention, according to the parties' undisputed letter of engagement, the defendant did not promise to negotiate administrative reconsideration on the plaintiff's behalf but, rather, that it would "investigate and consider options that may be available to urge...