Pires v. Daniella Levi & Assoc., P.C.

Opinion

Pires v Daniella Levi & Assoc., P.C.

2026 NY Slip Op 05330

September 16, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Manuel A. Pires, appellant-respondent,

v

Daniella Levi & Associates, P.C., et al., respondents-appellants, Ugalde & Rzonca, LLP, et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 16, 2026

2024-11101, (Index No. 504245/24)

Hector D. Lasalle, P.J.

Linda Christopher

Carl J. Landicino

James P. McCormack, JJ.

Edelman & Edelman, P.C. (Hasapidis Law Offices, South Salem, NY [Annette G. Hasapidis], of counsel), for appellant-respondent.

Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, NY (Lisa L. Shrewsberry and Sean E. Kelly of counsel), for respondents-appellants.

Rivkin Radler LLP, New York, NY (Jonathan B. Bruno and William Schleifer of counsel), for respondents.

[*1]

DECISION & ORDER

In an action to recover damages for legal malpractice, the plaintiff appeals, and the defendants Daniella Levi & Associates, P.C., and Daniella Levi cross-appeal, from an order of the Supreme Court, Kings County (Joy F. Campanelli, J.), dated October 2, 2024. The order, insofar as appealed from, granted the motion of the defendants Ugalde & Rzonca, LLP, Francisco A. Ugalde, and Tadeusz Rzonca pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. The order, insofar as cross-appealed from, denied the motion of the defendants Daniella Levi & Associates, P.C., and Daniella Levi pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that the order is reversed insofar as cross-appealed from, on the law, and the motion of the defendants Daniella Levi & Associates, P.C., and Daniella Levi pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them is granted; and it is further,

ORDERED that one bill of costs is awarded to the defendants appearing separately and filing separate briefs, payable by the plaintiff.

On May 19, 2021, while the plaintiff was "working on a project for the City of New York," he allegedly sustained personal injuries "when he was struck by a concrete form being raised, moved and/or placed by a backhoe."

On May 25, 2021, the plaintiff retained the defendant Ugalde & Rzonca, LLP (hereinafter Ugalde), to represent him in workers' compensation proceedings before the Workers' Compensation Board. A letter of engagement signed by the plaintiff stated that Ugalde "does not handle Personal Injury claims, which may be related to the Workers' Compensation claim," and that [*2]Ugalde would "not represent [the plaintiff] in any [o]f those types of claims at this time." Ugalde referred the plaintiff to the defendant Daniella Levi & Associates, P.C. (hereinafter Levi & Associates), to consult with regarding a possible personal injury claim. On or around the same day, the defendant Daniella Levi allegedly called the plaintiff and asked him about his accident. Levi advised the plaintiff that, in her opinion, he "had no case" except for a workers' compensation claim.

In February 2024, the plaintiff commenced this action to recover damages for legal malpractice based on the defendants' alleged failure, inter alia, to serve a timely notice of claim. Ugalde and the defendants Francisco A. Ugalde and Tadeusz Rzonca (hereinafter collectively the Ugalde defendants) moved, and Levi & Associates and Levi (hereinafter together the Levi defendants) separately moved, pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against each of them. In an order dated October 2, 2024, the Supreme Court granted the Ugalde defendants' motion and denied the Levi defendants' motion. The plaintiff appeals, and the Levi defendants cross-appeal.

"To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages" (Bernstein v Jacobson, 238 AD3d 1102, 1103-1104 [internal quotation marks omitted]). "'The existence of an attorney-client relationship is an essential element of a cause of action to recover damages for legal malpractice'" (id. at 1104, quoting Zi Kuo Zhang v Lau, 210 AD3d 829, 830).

Contrary to the plaintiff's contention, the Supreme Court properly granted the Ugalde defendants' motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. "Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Bernstein v Jacobson, 238 AD3d at 1103 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). "To constitute documentary evidence, the evidence must be unambiguous, authentic, and undeniable, such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable" (Yan Ping Xu v Van Zwienen, 212 AD3d 872, 874 [citations and internal quotation marks omitted]). Here, the engagement letter signed by the plaintiff, the authenticity of which is not controverted, utterly refuted the plaintiff's allegations that the Ugalde defendants' representation of him was not limited to his workers' compensation claim (see Getzel Schiff & Pesce, LLP v Shtayner, 233 AD3d 758, 759; Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850).

Furthermore, the Supreme Court should have granted the Levi defendants' motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. "'[O]n a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" (Bernstein v Jacobson, 238 AD3d at 1103, quoting 17 Lexington Ave., LLC v Alison Six Star, LLC, 229 AD3d 484, 486). "At the same time, however, 'allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration'" (Attallah v Milbank, Tweed, Hadley & McCloy, LLP, 168 AD3d 1026, 1028, quoting Maas v Cornell Univ., 94 NY2d 87, 91). "'Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery'" (Oak Beverages, Inc. v D.G. Yuengling & Son, Inc., 245 AD3d 93, 101, quoting Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142). Here, viewing the amended complaint in the light most favorable to the plaintiff, the allegations were insufficient to state a cause of action against the Levi defendants. The plaintiff failed to plead specific factual allegations supporting a claim that, but for the Levi defendants' alleged negligence, the plaintiff would have prevailed in an action against the City of New York (see Coniglio v Dansker & Aspromonte Assoc., 243 AD3d 628, 631-632; Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d 646, 649).

Finally, the plaintiff contends, as an alternate ground for affirmance (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539), that the Levi defendants' motion should be denied because it appears "that facts essential to justify opposition [to a motion pursuant to CPLR 3211] may exist but cannot then be stated" (CPLR 3211[d]). "'However, the mere hope that discovery may reveal facts essential to justify opposition does not warrant denial of the motion'" (Onco360 Holdings 1, Inc. v McDermott Will & Emery, LLP, 238 AD3d 890, 892, quoting Karpovich v City of New York, 162 AD3d 996, 998). Here, the plaintiff failed to make any showing that facts essential to justify opposition to the Levi defendants' motion could be yielded during discovery (see Morey v Babe Ruth League, Inc., 227 AD3d 694, 696).

The parties' remaining contentions need not be reached in light of our determination.

LASALLE, P.J., CHRISTOPHER, LANDICINO and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court