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COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the complaint stated a cause of action for legal malpractice and should not have been dismissed. The court explained that whether the action would survive a subsequent summary judgment motion is not to be considered. The complaint alleged plaintiff was injured by a pizza delivery driver and the attorneys failed to sue the employer (Dominos):

“On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint 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” … . “Where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed” … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … . …

Here, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the plaintiff stated a cause of action to recover damages for legal malpractice … . The evidentiary submissions did not establish that a material fact alleged in the complaint is not a fact at all and that no significant dispute exists regarding it … . Contrary to the defendants’ contention, the plaintiff was entitled to commence this legal malpractice action even though the underlying personal injury action was still pending, as the legal malpractice action accrued, at the latest, in November 2014 … . Lopez v Lozner & Mastropietro, P.C. , 2018 NY Slip Op 08017, Second Dept 11-21-18

ATTORNEYS (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LEGAL MALPRACTICE (COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (MOTIONS TO DISMISS,  COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/DISMISS COMPLAINT, MOTION TO (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPLR 3211 (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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