Kempf v. Magida
| Decision Date | 27 February 2007 |
| Docket Number | 2005-10411. |
| Citation | 2007 NY Slip Op 01685,37 A.D.3d 763,832 N.Y.S.2d 47 |
| Parties | MICHAEL KEMPF et al., Appellants, et al., Plaintiff, v. KENNETH S. MAGIDA, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was to dismiss the cause of action alleging legal malpractice arising from the civil forfeiture proceeding is denied.
The Supreme Court erred in dismissing the cause of action alleging legal malpractice arising from a civil forfeiture proceeding. On a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading is to be afforded a liberal construction. The court must accept the facts alleged in the complaint as true, accord the plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
Accepting all the facts alleged in the complaint as true, the plaintiffs stated a cause of action alleging legal malpractice in the forfeiture proceeding. The plaintiffs alleged in their complaint, inter alia, that the defendant was negligent for failing to become familiar with the forfeiture law and agreeing to the settlement terms without attempting to negotiate, and that his negligence was a proximate cause of their damages. While a legal malpractice action is unlikely to succeed where an attorney erred because an issue of law was unsettled or debatable (see Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000]), an attorney may be liable for a failure to conduct adequate legal research (see McCoy v Tepper, 261 AD2d 592 [1999]; Gardner v Jacon, 148 AD2d 794 [1989]).
The defendant's contention regarding damages is also without merit. The plaintiffs are not obligated to show, at this stage of the pleadings, that they actually sustained damages. They need only plead allegations from which damages attributable to the defendant's malpractice might be reasonably inferred (see InKine Pharm. Co. v Coleman, 305 AD2d 151 [2003]). In any event, the plaintiffs have pleaded actual damages.
The plaintiffs correctly contend that they were not required to submit an "affidavit" in opposition to the defendant's motion to dismiss pursuant to CPLR 3211 (a) (7). CPLR 3211 allows a plaintiff to submit affidavits, but it does not obligate the plaintiff to do so on penalty of dismissal, as under CPLR 3212. If a plaintiff chooses to stand on the pleading alone, confident that the allegations therein are sufficient to state all of the necessary elements of a cognizable cause of action, he or she is at liberty to do so and, unless the motion is converted by the court to one for...
To continue reading
Request your trial
-
Corsello v. Verizon N.Y. Inc.
...cables to the plaintiffs' building in 2004 or 2005, even if we afford the pleadings a liberal construction ( see Kempf v. Magida, 37 A.D.3d 763, 764, 832 N.Y.S.2d 47), the plaintiffs failed to allege that said conduct constituted another de facto taking so as to trigger a limitations period......
-
Palmieri v. Biggiani
...P.C., 83 A.D.3d 661, 663, 920 N.Y.S.2d 401;Ruffino v. New York City Tr. Auth., 55 A.D.3d 817, 818, 865 N.Y.S.2d 667;Kempf v. Magida, 37 A.D.3d 763, 764, 832 N.Y.S.2d 47;Ashton v. Scotman, 260 A.D.2d 332, 686 N.Y.S.2d 322). Contrary to the plaintiff's contention, the causes of action allegin......
-
Hendrickson v. Philbor Motors, Inc.
...656, 531 N.E.2d 288;Matter of South Blossom Ventures, LLC v. Town of Elma, 46 A.D.3d 1337, 1338, 848 N.Y.S.2d 806;Kempf v. Magida, 37 A.D.3d 763, 765, 832 N.Y.S.2d 47). This makes sense given the res judicata effect of CPLR 3212 summary judgment determinations, which, for many CPLR 3211 dis......
-
Kallista, S.A. v. White & Williams LLP
...v. Bally Total Fitness of Greater New York, Inc., 20 N.Y.3d 342, 351, 961 N.Y.S.2d 364, 985 N.E.2d 128 [2013] ; Kempf v. Magida, 37 A.D.3d 763, 832 N.Y.S.2d 47 [2d Dept.2007] ; see also Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635–636, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976] ) THE THIR......
-
CPLR 3211(a) (7): demurrer or merits-testing device?
...299 (N.Y. 1979). (56) See, e.g., IMS Eng'r-Architects, P.C. v. State, 858 N.Y.S.2d 486, 488 (App. Div. 3d Dep't 2008); Kempf v. Magida, 832 N.Y.S.2d 47, 49 (App. Div. 2d Dep't 2007); Riordan v. BOCES of Rochester, 772 N.Y.S.2d 428, 430 (App. Div. 4th Dep't 2004); Pietrosanto v. NYNEX Corp.,......