Sobel v. Ansanelli

• Decision Date: 19 September 2012
• Citation: 98 A.D.3d 1020,951 N.Y.S.2d 533,2012 N.Y. Slip Op. 06202
• Parties: Christina SOBEL, etc., respondent, v. Vincent W. ANSANELLI, et al., appellants.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 1020

951 N.Y.S.2d 533

2012 N.Y. Slip Op. 06202

Christina SOBEL, etc., respondent,

v.Vincent W. ANSANELLI, et al., appellants.

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

Sept. 19, 2012.

Ansanelli Law Group, LLP, Amityville, N.Y. (Mark E. Goidell of counsel), for appellants.

David Ullman, P.C., Garden City, N.Y., for respondent.

RUTH C. BALKIN, J.P., RANDALL T. ENG, JOHN M. LEVENTHAL, and CHERYL E. CHAMBERS, JJ.

In an action, inter alia, in effect, to recover damages for legal malpractice, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated July 18, 2011, as, in effect, granted that branch of their motion which was to dismiss the sixth cause of action as time-barred pursuant to CPLR 3211(a)(5) only to the extent of directing dismissal of so much of that cause of action as was predicated upon alleged acts or omissions occurring more than three years prior to the commencement of the action, and denied those branches of their motion which were to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7).

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion which were to dismiss the fourth cause of action pursuant to CPLR 3211(a)(1), and the third, fifth, and seventh causes of action pursuant to CPLR 3211(a)(7), and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

In August 2005 the decedent, Mary Ellen Malone, retained the defendant Vincent W. Ansanelli and the defendant law firm, Ansanelli, Kugler & Svendsen, LLP, to perform estate planning services, including asset protection, the preparation and filing of an application for Medicaid benefits, and the transfer of the decedent's cooperative apartment to her daughter, Christina Sobel. At the time the decedent retained the defendants, the alleged total value of her assets was approximately $190,000, and she allegedly had debts of approximately $60,000. More than two years after the decedent's death, by summons and complaint filed on February 3, 2011, Sobel commenced this action assertingsix causes of action alleging, in effect, legal malpractice, breach of contract, breach of fiduciary duty, fraud, and duress. The plaintiff's breach of fiduciary duty claims, set forth under the first and second causes of action, were premised upon allegations that the defendants had charged excessive legal fees totaling over $44,000 for the protection of the decedent's relatively modest estate.

Prior to joinder of issue, the defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), and (7). In support of their motion, they submitted, inter alia, copies of invoices allegedly sent to the plaintiff, and argued that these invoices established a defense to some of the plaintiff's claims because she had ratified them by retaining them without objection, making partial payment, and signing an agreement promising to pay the balance due. The defendants also submitted a document from the City of New York Human Resources Administration dated July 30, 2008, which indicated that the decedent's application for Medicaid benefits had been retroactively granted from November 1, 2006, to the date of her death on April 28, 2008. The defendants additionally contended that none of the plaintiff's claims stated a cause of action, and that the plaintiff's legal malpractice claim was barred by the statute of limitations.

In opposition, the plaintiff disputed the authenticity of the invoices submitted in support of the motion, asserting that they differed in format from those the defendants had provided to her because they included breakdowns of the hours expended on particular tasks. She further argued that her claims were not time-barred because the defendants' representation continued at least until February 3, 2008, when the defendants issued their final invoice. The plaintiff also served an amended complaint as of right pursuant to CPLR 3025(a), which was substantially similar to the original complaint except for the additionof a seventh cause of action alleging that the invoices the defendants had submitted to the court in support of their motion were fraudulent. The defendants thereafter submitted additional papers on the motion, seeking dismissal of the amended complaint.

The Supreme Court, among other things, in effect, granted that branch of the defendants' motion which was to dismiss the sixth cause of action alleging, in effect, legal malpractice as time-barred pursuant to CPLR 3211(a)(5) only to the extent of directing dismissal of so much of that cause of action as was predicated upon alleged acts or omissions occurring more than three years prior to the commencement of the action, and denied those branches of their motion which were to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7).

Initially, we note that since the defendants elected to apply their motion to dismiss to the amended complaint which superseded the original complaint, we consider the motion as directed against the amended complaint ( see Union State Bank v. Weiss, 65 A.D.3d 584, 585, 884 N.Y.S.2d 136;Ferguson v. Sherman Sq. Realty Corp., 30 A.D.3d 288, 817 N.Y.S.2d 272;Sage Realty Corp. v. Proskauer Rose, 251 A.D.2d 35, 38, 675 N.Y.S.2d 14; David D. Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3211:65).

Contrary to the defendants' contention, the Supreme Court properly denied those branches of their motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first and second causes of action alleging, in effect, breach of fiduciary duty premised on the theory that the defendants charged excessive legal fees. A motion to dismiss pursuant to CPLR 3211(a)(1) may be granted “only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law” ( 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;see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;Harris v. Barbera, 96 A.D.3d 904, 947 N.Y.S.2d 548;Parekh v. Cain, 96 A.D.3d 812, 948 N.Y.S.2d 72). To qualify as documentary evidence, printed materials “must be unambiguous and of undisputed authenticity” ( Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569;see Flushing Sav. Bank, FSB v. Siunykalimi, 94 A.D.3d 807, 808, 941 N.Y.S.2d 719;Yeshiva Chasdei Torah v. Dell Equity, LLC, 90 A.D.3d 746, 746–747, 935 N.Y.S.2d 33). Further, on a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190;Leon v. Martinez, 84 N.Y.2d at 87, 614 N.Y.S.2d 972, 638 N.E.2d 511).

Here, the invoices which the defendants submitted in support of their position that the plaintiff ratified the legal fees charged for services to the decedent were of disputed authenticity and did not constitute “documentary evidence” within the meaning of CPLR 3211(a)(1) ( see Reiver v. Burkhart Wexler & Hirschberg, LLP, 73 A.D.3d 1149, 1150, 901 N.Y.S.2d 690;see also Parekh v. Cain, 96 A.D.3d 812, 948 N.Y.S.2d 72;Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 997, 913 N.Y.S.2d 668). In any event, the invoices did not conclusively establish, as a matter of law, a defense to the first and second causes of action ( see Reiver v. Burkhart Wexler & Hirschberg, LLP, 73 A.D.3d at 1150–1151, 901 N.Y.S.2d 690;see also Cannon v. First Natl. Bank of E. Islip, 98 A.D.2d 704, 705, 469 N.Y.S.2d 101,affd.62 N.Y.2d 1003, ...