Endless Ocean, LLC v. Twomey

• Decision Date: 08 January 2014
• Citation: Endless Ocean, LLC v. Twomey, 2014 NY Slip Op 87, 113 A.D.3d 587, 979 N.Y.S.2d 84 (N.Y. App. Div. 2014)
• Court: New York Supreme Court — Appellate Division
• Parties: ENDLESS OCEAN, LLC, appellant, v. TWOMEY, LATHAM, SHEA, KELLEY, DUBIN & QUARTARARO, et al., respondents.

113 A.D.3d 587

979 N.Y.S.2d 84

2014 N.Y. Slip Op. 00087

ENDLESS OCEAN, LLC, appellant,

v.TWOMEY, LATHAM, SHEA, KELLEY, DUBIN & QUARTARARO, et al., respondents.

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

Jan. 8, 2014.

Capuder Fazio Giacoia LLP, New York, N.Y. (Douglas M. Capuder of counsel), for appellant.

Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, Stuart M. Bodoff, and Todd Belous of counsel), for respondents.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.

In an action to recover damages for legal malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (O. Bellantoni, J.), dated June 4, 2012, which granted the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a), and (2) a judgment of the same court dated July 5, 2012, which, upon the order, is in favor of the defendants and against the plaintiff dismissing the complaint.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is reversed, on the law, the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a) is denied, and the order dated June 4, 2012, is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( seeCPLR 5501[a] [1] ).

The plaintiff commenced this action to recover damages allegedly sustained as a result of the defendants' legal malpractice. As alleged in the complaint, the plaintiff retained the defendants to represent it in connection with the sale of certain real property and a related exchange of “like-kind property” pursuant to the Internal Revenue Code ( see26 USC § 1031). According to the allegations in the complaint, the plaintiff, based upon the defendants' advice, selected LandAmerica 1031 Exchange Services, Inc. (hereinafter LandAmerica), as the qualified intermediary to hold a portion of the sale proceeds, totaling $5.5 million, for the exchange of like-kind property pursuant to 26 USC § 1031. The complaint alleged, inter alia, that the defendants negligently represented the plaintiff inasmuch as they reviewed, and advised the plaintiff to execute, an agreement with LandAmerica, under which the exchange funds were to be held in a commingled account and not a qualified escrow account or trust. Soon after the sale proceeds were transferred to LandAmerica, its parent corporation, LandAmerica Financial Group, Inc., declared bankruptcy. According to the complaint, the plaintiff's funds were frozen for several years during the bankruptcy proceedings, and the plaintiff lost a portion of the funds because they were not held in a qualified escrow account or trust. The complaint further alleged that the plaintiff could not defer the taxes on the capital gains from the initial sale, as it did not have access to its funds to purchase a replacement property within the required 180–day period.

Prior to answering, the defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1) based on documentary evidence, and pursuant to CPLR 3211(a)(7) for failure to state a cause of action. The Supreme Court granted the defendants' motion to dismiss the complaint on both grounds.

The Supreme Court improperly granted the defendants' motion to dismiss the complaint based on documentary evidence. A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint, “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). Here, the retainer agreement submitted by the defendants did not conclusively establish a defense as a matter of law ( see Harris v. Barbera, 96 A.D.3d 904, 905–906, 947 N.Y.S.2d 548; Rietschel v. Maimonides Med. Ctr., 83 A.D.3d 810, 811, 921 N.Y.S.2d 290; Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38–39, 827 N.Y.S.2d 231).

“On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703–704, 864 N.Y.S.2d 70; see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511). “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,...