Biro v. Roth

• Court: New York Supreme Court — Appellate Division
• Citation: Biro v. Roth, 2014 NY Slip Op 6790, 994 N.Y.S.2d 168, 121 A.D.3d 733 (N.Y. App. Div. 2014)
• Decision Date: 08 October 2014
• Docket Number: 2014-00519, Index No. 3602/13.
• Parties: Andrew Scott BIRO, appellant, v. Warren J. ROTH, et al., respondents.

121 A.D.3d 733

994 N.Y.S.2d 168

2014 N.Y. Slip Op. 06790

Andrew Scott BIRO, appellant

v.Warren J. ROTH, et al., respondents.

2014-00519, Index No. 3602/13.

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

Oct. 8, 2014.

Murphy & Lambiase, Goshen, N.Y. (George Smith of counsel), for appellant.

Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman, P.C., New York, N.Y. (Wendy B. Shepps of counsel), for respondents.

MARK C. DILLON, J.P., RUTH C. BALKIN, JEFFREY A. COHEN, and BETSY BARROS, JJ.

Opinion

In an action to recover damages for legal malpractice, the plaintiff appeals from so much of an order of the Supreme Court, Orange County (Slobod, J.), dated October 3, 2013, as granted that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1) is denied.

The plaintiff commenced this action against the defendants, alleging a single cause of action sounding in legal malpractice. The defendants represented the plaintiff in connection with an application by which he sought disability retirement benefits in connection with his employment as a corrections officer with the New York State Department of Correctional Services (now known as the New York State Department of Corrections and Community Supervision). The complaint alleged, inter alia, that the defendants failed to incorporate certain documentary evidence of his disability into his application, and that their failure to do so was the proximate cause of his failing to secure the benefits he sought. Prior to answering the complaint, the defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). The Supreme Court denied that branch of the motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7), determining that the plaintiff stated a cause of action, but granted that branch of the motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1).

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) on the ground that a defense is founded on documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes [the] 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 Rodolico v. Rubin & Licatesi, P.C., 114 A.D.3d 923, 981 N.Y.S.2d 144 ; Endless Ocean, LLC v. Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 A.D.3d 587, 979 N.Y.S.2d 84 ; Siracusa v. Sager, 105 A.D.3d 937, 963 N.Y.S.2d 364 ). Here, in their motion to dismiss, the defendants argued that they included all relevant documentation to support the plaintiff's application for disability retirement benefits. However, the evidence submitted by the defendants, including a doctor's report stating that the plaintiff was able to return to full duty, either did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) or failed to utterly refute the plaintiff's allegations of malpractice or conclusively establish a defense as a matter of law (see Cives Corp. v. George A. Fuller Co., Inc., 97 A.D.3d 713, 948 N.Y.S.2d 658 ; Fontanetta v. John Doe 1, 73 A.D.3d 78, 84–85, 898 N.Y.S.2d 569 ). A party seeking relief pursuant to CPLR 3211(a)(1) on the ground that its defense is founded upon documentary evidence “ ‘has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim’ ” (Flushing Sav. Bank, FSB v. Siunykalimi, 94 A.D.3d 807, 808, 941 N.Y.S.2d 719, quoting Mazur Bros. Realty, LLC v. State of New York, 59 A.D.3d 401, 402, 873 N.Y.S.2d 326 ; see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Camisa v. Papaleo, 93 A.D.3d 623, 939 N.Y.S.2d 559 ; Makris v. Darus–Salaam Masjid, N.Y., Inc., 91 A.D.3d 729, 936 N.Y.S.2d 325 ). Here, the defendants failed to meet their burden. Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was to dismiss the complaint pursuant CPLR 3211(a)(1).

To the extent the defendants argue, as an alternative ground for affirmance (see Parochial Bus Sys. v. Board of Educ. of City of N.Y.,

60 N.Y.2d 539, 545, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ), that the branch of their motion which was pursuant to CPLR 3211(a)(7) should have been granted, that contention is without merit. On a motion to dismiss...