In Garanin v Hiatt, 219 AD3d 958, 959 [2d Dept 2023], the court held that the law firm’s motion to dismiss should have been denied since the court should have accepted the plaintiff’s allegations in the complaint as true. The court held:
In deciding a motion to dismiss pursuant to CPLR 3211(a)(7), the court must “accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511).
Applying these principles here, the Supreme Court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging legal malpractice. “While the complaint does not allege an attorney-client relationship between the plaintiff[ ] and the defendants, it sets forth a claim which falls within ‘the narrow exception of fraud, collusion, malicious acts or other special circumstances’ under which a cause of action alleging attorney malpractice may be asserted absent a showing of privity” (Mr. San, LLC v. Zucker & Kwestel, LLP, 112 A.D.3d 796, 796–797, 977 N.Y.S.2d 328, quoting Ginsburg Dev. Cos., LLC v. Carbone, 85 A.D.3d 1110, 1112, 926 N.Y.S.2d 156; see Webster v. Sherman, 165 A.D.3d 738, 740, 85 N.Y.S.3d 457).
The Supreme Court further erred in granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violation of Judiciary Law § 487. As relevant here, Judiciary Law § 487 imposes civil liability on any attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive … any party.” Here, accepting the plaintiff’s allegations as true and giving the plaintiff the benefit of every possible favorable inference, the amended complaint adequately states a cause of action to recover damages for violation of Judiciary Law § 487 (cf. Betz v. Blatt, 160 A.D.3d 696, 699, 74 N.Y.S.3d 75).
— Richard A. Klass, Esq.
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.
Prior results do not guarantee a similar outcome.
© 2023 Richard A. Klass