Ofman v. Tenenbaum Berger & Shivers, LLP

• Docket Number: 2020-07102,Index No. 524482/19
• Decision Date: 28 June 2023
• Citation: 2023 NY Slip Op 03471
• Parties: Mendel E. Ofman, appellant, v. Tenenbaum Berger & Shivers, LLP, et al., respondents.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 03471

Mendel E. Ofman, appellant,
v.
Tenenbaum Berger & Shivers, LLP, et al., respondents.

No. 2020-07102, Index No. 524482/19

Supreme Court of New York, Second Department

June 28, 2023

Catafago Fini LLP, New York, NY (Jacques Catafago and Sarah Dyer of counsel), for appellant.

Lewis Brisbois Bisgaard & Smith LLP, New York, NY (Mark K. Anesh and Catherine M. Ryan of counsel), for respondents.

BETSY BARROS, J.P. VALERIE BRATHWAITE NELSON DEBORAH A. DOWLING BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated July 23, 2020. The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the amended complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion pursuant to CPLR 3211(a) to dismiss the amended complaint is denied.

In August 2011, the plaintiff retained the defendants to prosecute an action, inter alia, to recover damages for breach of contract against a contractor who performed renovation work for the plaintiff in 2009 (hereinafter the underlying action). The plaintiff had commenced the underlying action in 2010 through different counsel. On July 9, 2019, a judgment was issued in the underlying action in favor of the plaintiff and against the contractor in the total sum of $541,188.24. According to the plaintiff, he was unable to collect on the judgment because the contractor had since sold his assets and moved to Italy.

In November 2019, the plaintiff commenced this action against the defendants to recover damages for legal malpractice, alleging that the defendants' delays in prosecuting the underlying action prevented him from collecting on the judgment. The defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. The plaintiff filed an amended complaint as of right while the defendants' motion was pending and opposed the defendants' motion. In reply, the defendants requested that their motion be addressed to the amended complaint. In an order dated June 23, 2020, the Supreme Court granted the defendants' motion. The plaintiff appeals.

As a threshold matter, we note that, because the plaintiff properly filed an amended complaint as of right in response to the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint, and in their reply, the defendants elected to apply...