Fenster v Smith

Fenster v Smith 2007 NY Slip Op 02814 [39 AD3d 231] April 3, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 6, 2007

Hyman Fenster et al., Appellants,
v
Michael Smith et al., Respondents.

—[*1] Gregory Antollino, New York, for appellants.

Kaufman Borgeest & Ryan LLP, New York (A. Michael Furman of counsel), for Michael Smith, respondent.

Gerald Mondora, respondent pro se.

Order, Supreme Court, New York County (Louis B. York, J.), entered January 4, 2006, which, in an action for legal malpractice, granted defendant Smith's motion to dismiss the action as against him for failure to state a cause of action, unanimously affirmed, without costs. Order, same court and Justice, entered February 1, 2006, which, insofar as appealed from, granted defendant Mondora's motion to dismiss, as time-barred, so much of plaintiffs' claim as is based on his failure to institute suit against Dr. Bernstein, unanimously reversed, on the law, without costs, the motion denied and that portion of plaintiff's claim reinstated.

Accepting the facts alleged in the complaint as true and affording plaintiffs the benefit of every possible favorable inference (Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the complaint against defendant Smith was properly dismissed since plaintiffs failed to demonstrate that they would have been successful in the underlying proceeding but for Smith's alleged malpractice (see Davis v Klein, 88 NY2d 1008, 1009-1010 [1996]; Hand v Silberman, 15 AD3d 167 [2005], lv denied 5 NY3d 707 [2005]). The court properly considered Smith's affidavit since factual allegations presumed to be true on a CPLR 3211 motion may properly be negated by affidavits and documentary evidence (see Wilhelmina Models, Inc. v Fleisher, 19 AD3d 267, 269 [2005]).

However, the court erred in dismissing that portion of the cause of action against defendant Mondora alleging that he was negligent for failing to bring suit against Dr. Bernstein since there are sufficient allegations with respect to the application of the continuous representation doctrine (cf. CLP Leasing Co., LP v Nessen, 12 AD3d 226 [2004]).

In light of the foregoing, we find no basis to impose sanctions against plaintiffs' counsel.

We have considered plaintiffs' remaining contentions and find them without merit. Concur—Andrias, J.P., Friedman, Marlow, Williams and Catterson, JJ.