Opinion
2013-05-8
Stan STUART, appellant, v. ROBERT L. FOLKS & ASSOCIATES, LLP, et al., respondents.
Genevieve Lane LoPresti, Islandia, N.Y., for appellant. Furman Kornfeld & Brennan, New York, N.Y. (A. Michael Furman and Evan W. Bolla of counsel), for respondents.
Genevieve Lane LoPresti, Islandia, N.Y., for appellant. Furman Kornfeld & Brennan, New York, N.Y. (A. Michael Furman and Evan W. Bolla of counsel), for respondents.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.
In an action to recover damages for legal malpractice and breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Woodard, J.), entered May 19, 2011, which, in effect, granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
In a legal malpractice action, a plaintiff must show that the defendant attorney “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” and that “the attorney's breach of this professional duty caused the plaintiff's actual damages” ( McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714 [internal quotation marks omitted]; see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385;Guayara v. Harry I. Katz, P.C., 83 A.D.3d 661, 662, 920 N.Y.S.2d 401;Alizio v. Feldman, 82 A.D.3d 804, 804, 918 N.Y.S.2d 218). To succeed on a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), the documentary evidence relied on by the defendant must “conclusively establish [ ] a defense to the asserted claims as a matter of law” ( Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;see Guayara v. Harry I. Katz, P.C., 83 A.D.3d at 662, 920 N.Y.S.2d 401).
Applying these standards to the instant case, the Supreme Court properly directed the dismissal of the legal malpractice cause of action. The plaintiff alleged that the defendants negligently advised him to prosecute an underlying action despite the fact that it was time-barred. However, the documentary evidence submitted by the defendants established that they specifically advised the plaintiff about probable statute-of-limitations problems, and that they reasonably commenced the underlying action despite such concern. Moreover, the documentary evidence also established that the underlying action was dismissed solely because the plaintiff failed to appear pro se with new counsel in that action within the time specified by the court, after the court had granted the motion of Robert L. Folks & Associates, LLP, a defendant in this action, to be relieved as counsel for the plaintiff in the underlying action.
The Supreme Court also properly directed the dismissal of the breach of contract cause of action because it was duplicative of the legal malpractice cause of action ( seeCPLR 3211[a][7]; Ofman v. Ginsberg, 89 A.D.3d 908, 909, 933 N.Y.S.2d 103;Conklin v. Owen, 72 A.D.3d 1006, 900 N.Y.S.2d 118;Laruccia v. Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, 295 A.D.2d 321, 322, 744 N.Y.S.2d 335).
The plaintiff's remaining contentions either are without merit or need not be reached in light of our determination.