Shayne v. Julien, Schlesinger & Finz, P.C.
| Decision Date | 15 April 1985 |
| Citation | 488 N.Y.S.2d 66,110 A.D.2d 761 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Neil T. SHAYNE, Respondent, v. JULIEN, SCHLESINGER & FINZ, P.C., et al., Appellants. |
Vincent J. Hand, Bayshore (Robert J. Passarelli, Rosedale, on brief), for appellants.
Grutman Miller Greenspoon Hendler & Levin, New York City (Joseph Santora, Adrienne De Luca and Joseph J. Brophy, New York City, of counsel), for respondent.
Before MANGANO, J.P., and BROWN, RUBIN and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for legal malpractice, defendants appeal from an order of the Supreme Court, Nassau County, entered April 25, 1984, which, inter alia, denied their motion, pursuant to CPLR 3211(a)(7), to dismiss the complaint for failure to state a cause of action.
Order affirmed, with costs.
In the instant complaint, plaintiff alleged, inter alia, that (1) he retained the defendants to represent him in a Federal anti-trust action against the National Hockey League, (2) in 1980 a judgment was rendered against him, on the merits, in the Federal anti-trust action and (3) but for the legal malpractice of the defendants, he would have prevailed in the Federal anti-trust action.
Prior to the joinder of issue, defendants moved by notice of motion dated January 3, 1984, for an order "[p]ursuant to CPLR 3211(a)(7) dismissing the plaintiff's complaint for failure to state a cause of action". The first paragraph of the supporting affidavit of defendants' attorney indicates that it was being made in support of "defendants' motion for an Order (a) dismissing the plaintiff's complaint, pursuant to CPLR 3211(a)(7), for failure to state a cause of action". Consistent with this approach, defendants' attorney argued in his supporting affidavit that the complaint did not adequately set forth factual allegations concerning the alleged legal malpractice. Defendants' attorney also argued, inter alia, that a review of the decision of the Federal court in the anti-trust action, which was annexed to the attorney's affidavit, conclusively demonstrated that the instant legal malpractice action was without merit and was barred by the doctrine of "res judicata ".
It should be noted that neither the defendants' notice of motion, nor their supporting affidavit, requested that the motion to dismiss the complaint pursuant to CPLR 3211(a)(7) be treated as a motion for summary judgment.
After an opposing affidavit was submitted by plaintiff, Special Term denied defendants' motion to dismiss the complaint. In so holding Special Term stated:
On the instant appeal, defe...
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