Malarkey v. Piel

7 A.D.3d 681, 776 N.Y.S.2d 845

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 17, 2004
• Status: Published

Opinion

In an action to recover damages for legal malpractice and breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Murphy, J.), entered February 11, 2003, which, upon an order of the same court entered January 13, 2003, granting the defendants’ motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly dismissed the plaintiffs cause of action to recover damages for legal malpractice based upon documentary evidence that conclusively established a defense to the action (see CPLR 3211 [a] [1]; Leon v Martinez, 84 NY2d 83 [1994]). The defendants submitted settlement agreements signed by the plaintiff, the transcript of court proceedings regarding the terms of the settlement, and the retainer agreement, all of which contradicted the claim of malpractice (see Laruccia v Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, 295 AD2d 321 [2002]; Schwarz v Shapiro, 202 AD2d 187 [1994]).

The Supreme Court also properly dismissed the plaintiffs cause of action to recover damages for breach of contract, as that cause of action was merely a redundant pleading of the malpractice claim (see Keselman v Kingsboro Med. Group, 156 AD2d 334 [1989]). Smith, J.P., H. Miller, S. Miller and Luciano, JJ., concur.