Motion to dismiss a legal malpractice claim.

Practice point: The motion, pursuant to CPLR 3211(a)(1), may be granted only if the movant’s documentary evidence utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law. Here, the defendants submitted a retainer agreement stating that there was "no assurance or guarantee of the outcome," and also that the agreement "does not include representation for . . . legal services after the Judgment of Trial Court . . . [or] [t]he Appeal of any decisions of the Trial Court." In opposing, the plaintiff’s affidavit detailed how the defendants failed to pursue a motion for leave to reargue or other application to modify a decision in the underlying action, submitted deficient or inappropriate proposed findings of fact and conclusions of law, and failed to adequately address various necessary issues during the trial. The court found that the retainer agreement was insufficient documentary evidence to dispose of those allegations.

Student note: A court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and upon considering such an affidavit, the facts alleged therein must also be assumed to be true.

Case: Harris v. Barbera, NY Slip Op 04973 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Common law indemnification