ADDITIONAL CASES Dominick W. Lavelle, Esq. Emily K. Lavelle, Esq., John E. Lavelle, Esq., The Law Office of Dominick W. Lavelle, The Lavelle Firm Third-Party Plaintiff(s) v. Charles Tucker, Esq., a/k/a Charles Tucker, Jr., Esq., and Tucker Law Group, LLP., Third-Party Defendant(s) The following papers numbered E31, EF33-EF59, EF65-EF86, EF88-EF96, EF99- EF118, and EF 120-EF122, read on this motion (sequence number “1″) by defendants/third-party defendants seeking dismissal of the Complaint and the Third-Party Complaint on the grounds of a violation of the statute of limitations, pursuant to CPLR §3211 (a)(5), and for failing to state a cause of action, pursuant to CPLR §3211 (a) (7), and motion by defendants, Lavelle, (sequence number “2″) seeking summary judgment, pursuant to CPLR §3212, dismissing plaintiff’s action against them. Papers Numbered Notice of Motion (Seq. 1) — Affirmation — Proposed Order E31 Answering Affirmations — Exhibits E55-E59 E99-E118 Notice of Motion (Seq. 2) — Affirmation — Exhibits E33-E54 Answering Affirmation — Exhibits E65-E86 Reply Affirmations — Exhibits E88-E96 E120-E122 Upon the foregoing papers, it is ordered that defendants’ motions are consolidated for the purposes of this disposition and are determined as follows: Plaintiff commenced this action to recover damages for alleged legal malpractice arising from a suit for personal injuries he sustained as a passenger in a motor vehicle accident on September 9, 2010. Plaintiff retained defendant Dominick W. Lavelle, Esq., who commenced said action against the owners and drivers of the involved vehicles, Nicky S. Stanislas, Ericka Emmanuel, Makwise Lewis and Najaki Lewis, in the Supreme Court, Bronx County, under Index No. 302297/2011. Issue was joined and discovery proceeded. In October 2013, plaintiff retained Tucker Law Group, LLP to represent him in the Bronx matter, as evidenced by the deposition testimony of Charles Tucker, Esq., and by the Notice of Appearance, dated October 23, 2013, signed and filed by Mr. Tucker, stating that he “was retained by the Plaintiff in the above matter as of last week Friday October 18, 2013″. On that date, Mr. Tucker moved to adjourn a scheduled October 25th, 2013 Court appearance on plaintiff’s behalf in the Bronx Supreme Court. On or about November 11, 2014, defendants in the personal injury action moved to dismiss the complaint, having previously served a 90- day notice, pursuant to CPLR §3216, on plaintiff via the Tucker Law Group, LLP, and received no response. The Tucker Law Group received a copy of the motion, and adjourned it with the Court due to counsel’s inability to appear on that date. No attorney for plaintiff submitted opposition or appeared on the adjourned date, and the motion was granted on January 30, 2015, dismissing plaintiff’s case. Thereafter, Lavelle attempted to move on plaintiff’s behalf to renew and reargue the Court’s dismissal, but withdrew such motion, because, Lavelle averred, he was told he had no standing as he was not plaintiff’s attorney of record at the time. Plaintiff sued the Lavelle defendants, who commenced a third-party action against the Tucker defendants. Plaintiff, thereafter, brought third-party defendants in as defendants in the original action. The Tucker defendants move (sequence number “1″) to dismiss plaintiff’s and third-party plaintiffs’ actions against them, on the basis of a violation of the statute of limitations, pursuant to CPLR §3211 (a)(5), and for failing to state a cause of action, pursuant to CPLR §3211 (a)(7). The Lavelle defendants move for summary judgment dismissing plaintiff’s action as against them pursuant to CPLR §3212. Plaintiff and third-party plaintiff oppose the motions. On the motion by the Tucker defendants, both plaintiff and the codefendants oppose, initially, on the ground that movants “failed to annex the pleadings to the moving papers.” A motion to dismiss pursuant to CPLR §3211 (a)(7) is directed at the pleadings, therefore requiring the inclusion of a copy of the complaint, as it is integral to the Court’s determination of whether a cause of action exists, is reasonable. A failure to annex same warrants denial, as “[t]here is no authority for compelling [a Court] to consider papers which were not submitted in connection with the motion on which it is ruling” (Biscone v. JetBlue Airways Corp., 103 AD3d 158, 178 [2012], quoting Loeb v. Tanenbaum, 124 AD2d 941, 942 [1986]; see Wells Fargo Home Mtge., Inc. v. Mercer, 35 AD3d 728 [2006]). While CPLR §2214(c) was amended in 2014 to provide that, in an e-filed case, as this one is, a moving party need not include “copies of papers that were filed previously electronically with the Court…[such movant must] make reference to them, giving the dockets numbers on the e-filing system.” In the case at bar, movants have failed to include any such references to said documents, and failed to establish their entitlement to dismissal of the action (see Eastern Funding LLC v. San Jose 63 Corp., 2019 NY Slip Op. 03569 [2019]). Had the Tucker defendants properly annexed the complaint they sought to dismiss to their motion papers, such motion would nevertheless have been denied on its merits. Movants assert a violation of CPLR §3211 (a)(5), on the basis that the main action suit was commenced beyond the three-year statute of limitations controlling legal malpractice actions (CPLR §214 (6); Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538 [2004]; Schwartz v. Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 155 AD3d 803 [2017]). However, the third-party action against the Tucker defendants is based on indemnity and/or contribution, which are implied contractual obligations, and have a statute of limitations of six years, under (CPLR §213 (2)). Not only was such third-party action commenced within six years from the date of any malpractice herein, but such claims have not begun to accrue, as “the cause of action is not complete until loss is suffered,” and no payment of the obligation for which indemnity or contribution is sought has yet been made (McDermott v. City of New York, 50 NY2d 211, 217 [1980]; see Gamparo v. Mathai, 105 AD3d 995 [2013]). Further, insofar as the instant motion was based upon CPLR §3211 (a)(7), for failure to state a cause of action, the Court is constrained to afford the pleading a liberal construction, accept as true all the facts alleged therein, give the nonmoving plaintiff the benefit of all favorable inferences, and determine only whether the alleged facts fit within any cognizable legal theory, and not whether plaintiff can ultimately prove such facts (see J.P. Morgan Securities, Inc. v. Vigilant Ins. Co., 21 NY3d 324 [2013]; People ex rel. Cuomo v. Coventry First LLC, 13 NY3d 108 [2009]; Bank of New York Mellon Trust Co., N.A. v. Universal Dev., LLC, 136 AD3d 850 [2016]; Cohen v. Finz & Finz, 131 AD3d 666 [2015]). A motion to dismiss merely addresses the adequacy of a pleading, and does not reach the substantive merits of a plaintiff’s cause of action (see Kaplan v. New York City Dep’t. of Health and Mental Hygiene, 142 AD3d 1050 [2016]; Lieberman v. Green, 139 AD3d 815 [2016]). Whether the pleading will later survive a summary judgment motion, or the plaintiff will ultimately prevail on the claims, is not relevant on a pre-discovery motion to dismiss (see Lieberman v. Green, 139 AD3d 815; Tooma v. Grossbarth, 121 AD3d 1093 [2014]). In the case at bar, after appropriately affording a liberal construction to the pleadings (see Leon v. Martinez, 84 NY2d 83 [1994]; Hampshire Properties v. BTA Building & Developing, Inc., 122 AD3d 573 [2014]; Carillo v. Stony Brook Univ., 119 AD3d 508 [2014]), plaintiff has sufficiently stated a cause of action for contribution and/or indemnity based on the negligence and malpractice of third-party defendants (see Old Republic Nat. Title Ins. Co. v. Junction Abstract, Inc., 150 AD3d 757 [2017]). As such, had the Tucker defendants’ motion not been procedurally defective, it would still have been denied, on the merits, for the reasons stated above. The Lavelle defendants move (sequence number “2″) for summary judgment dismissing the complaint in this legal malpractice action.” [T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Ayotte v. Gervasio, 81 NY2d 1062, 1063, citing Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]; see Schmitt v. Medford Kidney Center, 121 AD3d 1088 [2014]; Zapata v. Buitriago, 107 AD3d 977 [2013]). On one party’s motion for summary judgment, the evidence should be liberally construed in a light most favorable to the nonmoving party (see Boulos v. Lerner-Harrington, 124 AD3d 709 [2015]; Farrell v. Herzog, 123 AD3d 655 [2014]). Summary judgment “should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” (Collado v. Jiacono, 126 AD3d 927 [2014]), citing Scott v. Long Is. Power Auth., 294 AD2d 348, 348 [2002]; see Parietti-Fogarty v. Fogarty, 141 AD3d 512 [2016]). Credibility issues regarding the circumstances of the subject incident require resolution by the trier of fact (see Bravo v. Vargas, 113 AD3d 579 [2014]; Martin v. Cartledge, 102 AD3d 841 [2013]), and the denial of summary judgment. Movants contend that they are entitled to summary judgment because Dominick W. Lavelle had been discharged as plaintiff’s attorney prior to the Court Order dismissing the action for failure to prosecute. However, the evidence provided in support of such assertion fails to warrant entitlement to judgment as a matter of law. Although “an affirmative discharge of an attorney by a client is immediate” (Farage v. Ehrenberg, 124 AD3d 159, 165 [2014]), the Lavelle defendants have not proffered a formal “affirmative discharge” herein, but merely a retainer agreement between plaintiff and the Tucker defendants, which, by its terms, fails to conclusively establish that the Tucker defendants replaced the Lavelle defendants as attorneys for plaintiff. Said retainer contains language indicating that the Tucker defendants were being retained for purposes of an “appeal,” which raises a question of fact herein. Further, “an attorney of record in an action may only withdraw or be changed or discharged in the manner prescribed by statute” (Moustakas v. Bouloukos, 112 AD2d 981, 983 [1985]; see Kumar v. Demasi, 170 AD3d 986 [2019]; Garafalo v. Mayoka, 151 AD3d 1018 [2017]). CPLR §321 (b) states, in relevant part, that “an attorney of record may be changed by filing with the clerk a consent to the change signed by the retiring attorney and signed and acknowledged by the party.” In the case at bar, no such consent to change attorney has been produced, nor were the Lavelle defendants relieved of their duties as counsel by Court Order based on a motion by said Lavelle defendants for such relief. Without such statutory indicia of withdrawal or discharge, the Lavelle defendants have failed to eliminate all questions of fact concerning whether they were no longer the attorneys for plaintiff at the time the action was dismissed. Additionally, the evidence provided herein demonstrates continued efforts by the Lavelle defendants to assist plaintiff in the prosecution of his action, which raises unresolved issues of fact diametrical to movants’ contention, all of which warrants denial of their motion seeking summary judgment. The parties’ remaining contentions and arguments are either without merit, or need not be addressed in light of the foregoing determinations. Accordingly, both the Tucker defendants’ motion to dismiss, and the Lavelle defendants’ motion for summary judgment, are denied in their entireties. Dated: August 23, 2019
