Portilla v. Law Offices of Arcia & Flanagan

• Court: New York Supreme Court — Appellate Division
• Citation: Portilla v. Law Offices of Arcia & Flanagan, 125 A.D.3d 956, 5 N.Y.S.3d 142, 2015 N.Y. Slip Op. 1626 (N.Y. App. Div. 2015)
• Decision Date: 25 February 2015
• Parties: Jesus PORTILLA, respondent, v. LAW OFFICES OF ARCIA & FLANAGAN, et al., appellants, et al., defendant.

125 A.D.3d 956

5 N.Y.S.3d 142

2015 N.Y. Slip Op. 01626

Jesus PORTILLA, respondent

v.LAW OFFICES OF ARCIA & FLANAGAN, et al., appellants, et al., defendant.

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

Feb. 25, 2015.

Tumelty & Spier, LLP, New York, N.Y. (John Tumelty of counsel), for appellants.

Gregory J. Cannata, New York, N.Y. (Alison Cannata Hendele of counsel), for respondent.

PETER B. SKELOS, J.P., MARK C. DILLON, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.

Opinion

In an action to recover damages for legal malpractice, the defendants Law Offices of Arcia & Flanagan, Law Offices of E. Abel Arcia, and Eloy Abel Arcia appeal from an order of the Supreme Court, Queens County (Hart, J.), entered March 4, 2013, which denied their motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against them, or to compel additional discovery.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants' motion which was to compel additional discovery, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the respondent.

The Supreme Court properly denied, as untimely, that branch of the appellants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1) insofar as asserted against them, as it was not made within the time period in which the appellants were required to serve an answer (see CPLR 3211 [e] ), and no extension of time to make the motion was requested by the appellants or granted by the court (see CPLR 2004 ; Lema v. New York Cent. Mut. Fire Ins. Co., 112 A.D.3d 891, 978 N.Y.S.2d 75 ; Clinkscale v. Sampson, 74 A.D.3d 721, 904 N.Y.S.2d 447 ; Bennett v. Hucke, 64 A.D.3d 529, 881 N.Y.S.2d 335 ; Bowes v. Healy, 40 A.D.3d 566, 833 N.Y.S.2d 400 ).

The Supreme Court also properly denied that branch of the appellants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) insofar as asserted against them. “To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages” ( Dempster v. Liotti, 86 A.D.3d 169, 176, 924 N.Y.S.2d 484 [internal quotation marks omitted]; see Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d 812, 963 N.Y.S.2d 313 ; Held v. Seidenberg, 87 A.D.3d 616, 617, 928 N.Y.S.2d 477 ). Here, accepting the facts as alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ), the complaint alleged sufficient material facts giving rise to a cognizable cause of action to recover damages for legal malpractice.

Moreover, for a defendant in a legal malpractice case to succeed on a motion for summary judgment, evidence must be presented in admissible form establishing that the plaintiff is unable to prove at least one of the essential elements (see Verdi v. Jacoby & Meyers, LLP, 92 A.D.3d 771, 772, 938 N.Y.S.2d 806 ; Goldberg v. Lenihan, 38 A.D.3d 598, 832 N.Y.S.2d 68 ). Here, the appellants contend that the alleged breach of duty did...