DECISION AND ORDER Plaintiff Marks Paneth LLP seeks damages from defendant-third party plaintiff Economic Alchemy LLC, an intellectual property holding company, for its breach of a contract for expert services in a legal malpractice dispute. Economic Alchemy in turn commenced a third party action against third party defendant Law Office of Daniel L. Abrams, PLLC, Economic Alchemy’s former attorney for the legal malpractice action, to recover the expert fees claimed by plaintiff from Economic Alchemy. It claims that third party defendant misrepresented plaintiff’s expertise, inducing it to retain plaintiff for expert services and to incur fees for services that were never provided or were useless. Third party defendant now moves to dismiss Economic Alchemy’s third party complaint based on documentary evidence and failure to state a claim. C.P.L.R. §3211(a)(1) and (7).I. ECONOMIC ALCHEMY’S THIRD PARTY COMPLAINTEconomic Alchemy alleges that it retained nonparty Byrne Poh LLP, a patent law firm, to secure utility patents for its technology. Economic Alchemy then retained third party defendant to sue Byrne Poh for legal malpractice in securing those patents. Economic Alchemy LLC alleges that Daniel Abrams, third party defendant’s principal attorney, insisted that Economic Alchemy retain plaintiff to provide expert services as a condition of the firm’s representation and misrepresented plaintiff’s expert knowledge of and experience with utility patents, on which Economic Alchemy relied in retaining plaintiff. Economic Alchemy LLC further alleges that plaintiff possessed no expert knowledge of or experience with intellectual property or utility patents; that third party defendant knew plaintiff lacked that knowledge and experience; and that Economic Alchemy, after relying on third party defendant’s misrepresentations, incurred a debt to plaintiff for its services.II. THIRD PARTY DEFENDANT’S DOCUMENTARY EVIDENCETo dismiss the third party complaint pursuant to C.P.L.R. §3211(a)(1), third party defendant must present admissible documentary evidence that utterly refutes or completely negates third party plaintiff’s allegations so as to eliminate all material disputes regarding those facts. Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002); 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152 (2002); Mill Financial, LLC v. Gillett, 122 A.D.3d 98, 103 (1st Dep’t 2014); Art & Fashion Group Corp. v. Cyclops Prod., Inc., 120 A.D.3d 436, 438 (1st Dep’t 2014). The documentary evidence must plainly and flatly contradict the third party complaint’s claims. Maas v. Cornell Univ., 94 N.Y.2d 87, 91 (1999); Xi Mei Jia v. Intelli-Tec Sec. Servs., Inc., 114 A.D.3d 607, 608 (1st Dep’t 2014); Cathy Daniels, Ltd. v. Weingast, 91 A.D.3d 431, 433 (1st Dep’t 2012); KSW Mech. Servs., Inc. v. Willis of N.Y., Inc., 63 A.D.3d 411, 411 (1st Dep’t 2009). See Lopez v. Fenn, 90 A.D.3d 569, 572 (1st Dep’t 2011).Third party defendant presents correspondence dated January 14, 2014, from plaintiff to Abrams, when he was a member of the firm Ballestriere, Fariello & Abrams LLP, confirming Abrams’s retention of plaintiff on behalf of Economic Alchemy, and correspondence dated September 23, 2014, from Abrams to Economic Alchemy, confirming third party defendant’s representation of Economic Alchemy. Third party defendant maintains that these documents demonstrate Abrams’s retention of plaintiff on Economic Alchemy’s behalf before Abrams formed the Law Offices of Daniel L. Abrams, PLLC, so that any fraud is not attributable to third party defendant.Economic Alchemy’s owner and chief executive officer, Giselle Guzman, attests in opposition that Abrams represented to her that plaintiff possessed expertise regarding utility patents both before and after Economic Alchemy retained third party defendant. Aff. of Giselle Guzman
