Schiller v. Bender, Burrows & Rosenthal, LLP

• Decision Date: 09 April 2014
• Citation: 116 A.D.3d 756,2014 N.Y. Slip Op. 02422,983 N.Y.S.2d 594
• Parties: Gerard M. SCHILLER, etc., appellant, v. BENDER, BURROWS AND ROSENTHAL, LLP, et al., respondents.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 756
983 N.Y.S.2d 594
2014 N.Y. Slip Op. 02422

Gerard M. SCHILLER, etc., appellant,
v.
BENDER, BURROWS AND ROSENTHAL, LLP, et al., respondents.

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

April 9, 2014.

[983 N.Y.S.2d 595]

Andrew Lavoott Bluestone, New York, N.Y., for appellant.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Joan Martino Faley of counsel), for respondents Bender, Burrows and Rosenthal, LLP, Bender, Rosenthal, Isaacs & Richter, LLP, Susan Bender, and Michael Etzrodt.

Hinshaw & Culbertson, LLP, New York, N.Y. (Annmarie D'Amour and Philip Touitou of counsel), for respondents Advocate & Lichtenstein, LLP, and Jason Advocate.

PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Westchester County (O.Bellantoni, J.), entered May 25, 2012, as, upon an order of the same court dated April 25, 2012, among other things, granting those branches of the motion of the defendants Bender, Burrows and Rosenthal, LLP, Bender, Rosenthal Isaacs & Richter, LLP, Susan Bender, and Michael Etzrodt, and those branches of the separate motion of the defendants Advocate & Lichtenstein, LLP, and Jason Advocate, which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first, second, fourth, fifth, and sixth causes of action insofar as asserted against each of them, is in favor of the defendants and against him, dismissing those causes of action.

ORDERED that the judgment is affirmed insofar as appealed from, with one

[983 N.Y.S.2d 596]

bill of costs to the defendants appearing separately and filing separate briefs.

The plaintiff commenced this action against Bender, Burrows and Rosenthal, LLP, Bender, Rosenthal Isaacs & Richter, LLP, Susan Bender, and Michael Etzrodt (hereinafter collectively the Bender defendants), who represented him in a matrimonial action, and Advocate & Lichtenstein, LLP, and Jason Advocate (hereinafter together the Advocate defendants), who represented him in a related action against his former wife concerning the termination of their joint medical practice. In April 2008, the plaintiff and his former wife entered into a stipulation of settlement (hereinafter the settlement) with regard to both underlying actions. In the complaint, the plaintiff alleged, inter alia, that the Bender defendants and the Advocate defendants coerced him into settling, and that the settlement was deficient in several respects. The first and second causes of action alleged violations of Judiciary Law § 487, the fourth cause of action alleged legal malpractice, the fifth cause of action alleged breach of fiduciary duty, and the sixth cause of action alleged breach of contract. The Supreme Court, inter alia, dismissed those causes of action.

A motion to dismiss on the basis of CPLR 3211(a)(1) should be granted only where the documentary evidence that forms the basis of the defense is such that it refutes the plaintiff's factual allegations or conclusively disposes of the plaintiff's claims as a matter of law ( see 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;Held v. Kaufman, 91 N.Y.2d 425, 430–431, 671 N.Y.S.2d 429, 694 N.E.2d 430). On a motion to dismiss pursuant to CPLR 3211(a)(7), the court should accept the facts alleged in the complaint as true and afford the proponent the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511;Baron v. Galasso, 83 A.D.3d...