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EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant attorneys were not entitled to dismissal of the legal malpractice action based on documentary evidence:

A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law” … . “In order for evidence to qualify as documentary,' it must be unambiguous, authentic, and undeniable” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” … . “Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence” … .

Here, the emails and letters submitted in support of the defendant's motion were not documentary evidence within the meaning of CPLR 3211(a)(1). To the extent that the other evidence submitted was documentary, that evidence did not conclusively establish the absence of an attorney-client relationship between the plaintiffs and the defendant with respect to the liens and their extensions. First Choice Plumbing Corp. v Miller Law Offs., PLLC, 2018 NY Slip Op 05825, Second Dept 8-22-18

CIVIL PROCEDURE (EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPLR 3211 (EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CIVIL PROCEDURE, EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LEGAL MALPRACTICE  (EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (LEGAL MALPRACTICE, CIVIL PROCEDURE, EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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