The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55 were read on this motion to/for DISMISSAL. DECISION ORDER ON MOTION Defendants’ motion to dismiss pursuant to CPLR 3211(a)(1) and (5) is granted. The following facts are not in dispute. Defendants represented plaintiff in an underlying action entitled Farina v. Bastianich, (NY County — Index No: 109524/2011). In that representation, plaintiff filed an action alleging 11 causes of action against her former employer relating to said employment. The Supreme Court dismissed the action in the entirety and the Appellate Division reinstated two of the causes of action. Nearly two years after the reinstatement, the relationship between plaintiff and defendants (herein) broke down. On or about February 26, 2016, plaintiff executed a consent to change attorney form that was sent to defendants. Defendants refused to countersign due a financial dispute. On March 15, 2016 plaintiff’s new counsel sent defendants a letter advising defendants that they were new counsel, once again asking defendants to sign the consent form and reminding defendants that they were still holding the file and had certain responsibilities as counsel of record. On March 23, 2016, defendants filed an Order to Show Cause seeking to be relieved and a charging lien. The documentary evidence shows that on April 7, 2016, the consent to change attorneys was filed and new counsel took over the case. Further, new counsel in the underlying matter stated that they received the client file as of March 31, 2016. On April 21, 2016, plaintiff’s new counsel and defendants appeared on the return date of the Order to Show Cause where they resolved the charging lien portion of the motion by deferring the question until such time that plaintiff was entitled to recover money under that action. The stipulation resolving the Order to Show Cause also stated that defendants were relieved as counsel. On April 22, 2019, plaintiff filed the instant case alleging malpractice by her former attorneys in the underlying matter. Specifically, the Complaint states that defendants failed to amend the complaint in the underlying action, nor did it seek to add additional causes of action. The Complaint then goes on to state that defendants committee malpractice by failing to exercise that degree of care, skill and diligence commonly exercised by a member of the legal profession in connection with their representation of the Plaintiff. Defendants filed the instant motion seeking to dismiss pursuant to CPLR 3211(a)(1)(5) and (7). Plaintiff opposed and cross-moved to amend the Complaint. The proposed Amended Complaint adds details, partially in response to the portion of the motion under 3211(a)(7). When deciding a motion to dismiss pursuant to CPLR §3211, the court should give the pleading a “liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff the benefit of every possible favorable inference” (Landon v. Kroll Laboratory Specialists, Inc., 22 NY3d 1, 5-6 [2013]; Faison v. Lewis, 25 NY3d 220 [2015]). However, if a complaint fails within its four corners to allege the necessary elements of a cause of action, the claim must be dismissed (Andre Strishak & Associates, P.C. v. Hewlett Packard & Co., 300 AD2d 608 [2d Dept 2002]. A motion to dismiss pursuant to CPLR §3211(a)(1), should not be granted unless the documentary evidence submitted is such that it resolves all factual issues as a matter of law and conclusively disposes of the claims set forth in the pleading (Art & Fashion Grp. Corp. v. Cyclops Prod., Inc., 120 AD3d 436, 438 [1st Dept 2014]). Under CPLR §3211(a)(7), the court “accepts as true the facts as alleged in the complaint and affidavits in opposition to the motion, accords the plaintiff the benefit of every possible favorable inference, and determines only whether the facts as alleged manifest any cognizable legal theory” (Elmaliach v. Bank of China Ltd., 110 AD3d 192, 199 [1st Dept 2013] (quoting Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001])). It is true that “[t]he court is not required to accept factual allegations, or accord favorable inferences, where the factual assertions are plainly contradicted by documentary evidence” (Bishop v. Maurer, 33 AD3d 497, 498 [1st Dept 2006]). However, documentary evidence consists of submissions whose content’s veracity is basically indisputable (Eisner v. Cusumano Constr., Inc., 132 AD3d 940, 940-942 [2nd Dept 2015]). Typically, these are comprised of judicial records (id.). Defendants’ motion is granted based upon the expiration of statute of limitations prior to filing of this case. The statute of limitations for claims of legal malpractice is three years (CPLR 214(6); see also Duane Morris LLP v. Astor Holdings Inc., 61AD3d 418 [1st Dept. 2009]). Generally speaking, a legal malpractice cause of action accrues “when the malpractice is committed, not when the client learns of it” (Palmeri v. Willkie Farr & Gallagher LLP, 156 AD3d 564, 567 [1st Dept. 2017]). While the precise date of the alleged malpractice is not clear, even giving plaintiff the benefit of the continuous representation (see Shumsky v. Eisenstein, 96 NY2d 164 [2001]) and the continuing wrong doctrine (see Harvey v. Metropolitan Life Ins. Co., 34 AD3d 364 [1st Dept 2006]) this matter was filed beyond the statute of limitations. Here, the documentary evidence submitted to the Court and those filed on NYSCEF show that this matter was filed on April 22, 2019. As discussed above, it is undisputed that by April 7, 2016, the consent to change attorneys was filed and new counsel took over the case. Further, new counsel in the underlying matter stated that they received the client file as of March 31, 2016. There was nothing preventing new counsel from working on this matter any later than April 7, 2016 and plaintiff has failed to articulate any such reason or continued wrongdoing or representation past April 7, 2016. Plaintiff’s conclusory statement that despite the consent being filed and the case file being turned over by April 7, 2016, plaintiff was dependent upon her continuing and ongoing relationship with defendants and that new counsel could not work on the matter until after the April 2, 2016 date is not supported by any legal authority. Similarly, plaintiff’s contention that the Order to Show Cause filed by defendants, wherein defendants stated that they were seeking to be relieved as attorneys, shows that they were still the attorneys until the return date on April 21, 2016 is without merit. At the time the Order to Show Cause was filed (March 23, 2016), defendants had refused to sign the consent form and had a dispute with new counsel about tuning over the case file. Those disputes were resolved prior to the return date and the question of the charging lien was all that remained. Thus, even if at the time the Order to Show Cause was filed defendants were still plaintiff’s attorney and made such a representation to the Court, there is no basis to say that defendants continued to be the attorney any time past April 7, 2016. Motions for leave to amend pleadings should be freely granted, absent prejudice or surprise resulting therefrom unless the proposed amendment is palpably insufficient or patently devoid of merit (Y.A. v. Conair Corp., 154 AD3d 611 [1st Dept 2017]). Here, none of the additional facts offered by plaintiff extends any of the claims within the statute of limitations and, thus, the proposed amended complaint is palpably insufficient. Accordingly, it is therefore ORDERED that defendants’ motion to dismiss the Complaint is granted; and it is further ORDERED that plaintiff’s cross-motion to amend is denied. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: February 21, 2020
