Professional Negligence Law Reporter

A New York appellate court held that a legal malpractice suit may proceed where the defense failed to submit documentary evidence refuting the plaintiff’s allegations or conclusively establishing a defense as a matter of law.

Aaron Berger sued Marc Wohlgemuth & Associates and another defendant, alleging legal negligence arising out of Wohlgemuth’s representation of him as a defendant in a personal injury action. Wohlgemuth moved to dismiss under N.Y. C.P.L.R. 3211(a)(1) and (7). The trial court denied the motion.

Affirming, the court found that to succeed on a motion to dismiss based on documentary evidence under N.Y. C.P.L.R. 3211(a)(1), the documentary evidence must refute the plaintiff’s allegations and conclusively establish a defense as a matter of law. For a motion under C.P.L.R. 3211(a)(7), the court added, a court must accept the facts alleged in the complaint as true and determine whether the facts fit within any cognizable legal theory. Here, the court found that the plaintiff’s complaint had sufficiently stated a cause of action to recover damages for legal malpractice.

Citing case law, the court rejected the defense argument that the plaintiff must plead that the alleged malpractice fell within the agreed scope of the defendant’s representation. Additionally, the court stated that the defendant failed to submit documentary evidence sufficient to establish that the scope of the representation did not include matters related to the alleged negligence or to utterly refute the plaintiff’s allegations.

Consequently, the trial court properly denied the defense motion.

Citation: Berger v. Lewis Johs Avallone Aviles, LLP, 2024 WL 4897647 (N.Y. App. Div. Nov. 27, 2024).

Plaintiff counsel: Elizabeth A. Mancuso, David King, and Avery Mehlman, all of New York City.