Soule v. Lozada

• Decision Date: 24 October 1996
• Citation: 232 A.D.2d 825,648 N.Y.S.2d 790
• Parties: John SOULE et al., Respondents, v. Jose Mari C. LOZADA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 790

648 N.Y.S.2d 790

232 A.D.2d 825

John SOULE et al., Respondents, v. Jose Mari C. LOZADA, Appellant.

Supreme Court, Appellate Division,

Third Department.

Oct. 24, 1996.

Jose Mari C. Lozada, New Hartford, appellant in person.

James P. Roman, Chittenango, for respondents.

Before CREW, J.P., and WHITE, CASEY, YESAWICH and SPAIN, JJ.

WHITE, Justice.

Appeal from that part of an order of the Supreme Court (Tait Jr., J.), entered August 14, 1995 in Madison County, which denied defendant's motion to dismiss the complaint for failure to state a cause of action.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court's function is to determine whether the facts alleged in the complaint fit within any cognizable legal theory (see, Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17). Obviously, to perform this task the complaint must be before the court. Here, defendant in this legal malpractice action failed to include a copy of the complaint with his motion papers. In light of this fatal defect, Supreme Court properly denied his motion. However, since we have the same power and discretion as Supreme Court and as the complaint is contained in the record, we will consider defendant's motion in the interest of judicial economy ¹ (see, O'Brien v. Vassar Bros. Hosp., 207 A.D.2d 169, 171, 622 N.Y.S.2d 284; Meraner v. Albany Med. Ctr., 199 A.D.2d 740, 605 N.Y.S.2d 442).

Applying the controlling principles to plaintiffs' complaint (see, Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511), we conclude that the first two causes of action sufficiently set forth claims sounding in legal malpractice, as they allege that defendant's conduct in failing to file an order granting them a preliminary injunction in an action for specific performance and to comply with a CPLR 3216 demand in that action fell below acceptable standards resulting in damage to them (see, Thaler & Thaler v. Gupta, 208 A.D.2d 1130, 1132, 617 N.Y.S.2d 605). We shall dismiss the third cause of action because there is no separate cause of action for punitive damages (see, Rocanova v. Equitable Life Assur. Socy. of U.S., 83 N.Y.2d 603, 616-617, 612 N.Y.S.2d 339, 634 N.E.2d 940).

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as denied the motion regarding the third cause of action in plaintiff's complaint; motion granted to that extent and said cause of action is dismissed; and, as so modified,...