Stuart v. Kushner

Appellate Division of the Supreme Court of New York

Stuart v. Kushner

68 A.D.3d 974, 889 N.Y.2d 853

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 15, 2009

StatusPublished

Cited by3 cases

This text of 68 A.D.3d 974 (Stuart v. Kushner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Stuart v. Kushner, 68 A.D.3d 974, 889 N.Y.2d 853 (N.Y. Ct. App. 2009).

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Opinion

[975]*975Affording the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiff the benefit of every favorable inference as required on a motion to dismiss pursuant to CPLR 3211 (a) (7) (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]), the Supreme Court properly denied that branch of the defendant’s motion which was to dismiss the first cause of action to recover damages for legal malpractice (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]).

However, the Supreme Court should have granted those branches of the defendant’s motion which were to dismiss the second and third causes of action seeking to recover damages for negligence and fraud, as those causes of action are duplicative of the legal malpractice cause of action (see Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850 [2009]; Sitar v Sitar, 50 AD3d 667, 670 [2008]; Iannucci v Kucker & Bruh, LLP, 42 AD3d 436, 437 [2007]; Town of Wallkill v Rosenstein, 40 AD3d 972, 974 [2007]).

The defendant’s remaining contentions are without merit or need not be considered in light of our determination. Rivera, J.P., Dillon, Miller and Roman, JJ., concur.

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[975]*975Affording the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiff the benefit of every favorable inference as required on a motion to dismiss pursuant to CPLR 3211 (a) (7) (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]), the Supreme Court properly denied that branch of the defendant’s motion which was to dismiss the first cause of action to recover damages for legal malpractice (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]).

However, the Supreme Court should have granted those branches of the defendant’s motion which were to dismiss the second and third causes of action seeking to recover damages for negligence and fraud, as those causes of action are duplicative of the legal malpractice cause of action (see Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850 [2009]; Sitar v Sitar, 50 AD3d 667, 670 [2008]; Iannucci v Kucker & Bruh, LLP, 42 AD3d 436, 437 [2007]; Town of Wallkill v Rosenstein, 40 AD3d 972, 974 [2007]).

The defendant’s remaining contentions are without merit or need not be considered in light of our determination. Rivera, J.P., Dillon, Miller and Roman, JJ., concur.

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68 A.D.3d 974, 889 N.Y.2d 853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stuart-v-kushner-nyappdiv-2009.

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