FKB’s Andrew Jones and Ashley Glazewski successfully obtain dismissal of a legal malpractice claim as barred by documentary evidence.


FKB successfully obtained a CPLR § 3211 pre-answer dismissal in the Supreme Court, Queens County of a legal malpractice claim as barred by documentary evidence.

In the underlying facts of this case, FKB’s attorney-client represented the owner of a corporation who sold shares of stock to the Plaintiff.  Prior to the transaction, FKB’s client advised Plaintiff that he represented the seller, and that Plaintiff should obtain separate counsel to represent him in the transaction. However, Plaintiff executed an attorney waiver which unequivocally stated that he understood FKB’s client represented the seller and that he chose to proceed without an attorney. This legal malpractice action was filed on February 8, 2018 based on inter alia Plaintiff’s allegations that FKB’s client failed to adequately represent Plaintiff’s interests as the buyer in the underlying transaction. Accordingly, FKB filed a pre-answer motion to dismiss pursuant to CPLR § 3211 arguing that Plaintiff failed to state a claim for legal malpractice and that plaintiff’s claims were barred by documentary evidence and New York’s three (3) year statute of limitations for legal malpractice actions. In opposition, Plaintiff argued that he believed FKB’s client represented him in the underlying transaction and that he was not a native English speaker so he did not understand the terms of the attorney waiver signed at the closing.

On September 28, 2018, Justice Marguerite Grays issued an Order granting FKB’s motion to dismiss pursuant to CPLR § 3211(a)(1).  Although the court found that Plaintiff sufficiently stated a claim under CPLR§ 3211 (a)(7),  the Court held that Plaintiff’s action is barred by documentary evidence which conclusively demonstrates that FKB’s client did not represent the Plaintiff in the underlying transaction and that no attorney-client relationship existed. In its decision, the Court relied on the documents annexed to FKB’s motion, specifically: (1) an invoice to the seller for the attorney’s services at the closing; and (2) Plaintiff’s signed statement/waiver acknowledging that the attorney was representing the seller and that Plaintiff had been given the opportunity to obtain his own attorney (but chose to proceed without one)

The Court rejected Plaintiff’s argument that he was not fluent in English and did not understand the contents of the document he signed at the closing. Notably, the Court held that “a party who signs a document without any valid excuse for not having read it is conclusively bound by its terms” and “[p]ersons who are illiterate in the English language are not automatically excused from complying with the terms of a document which they sign simply because they could not read it; such persons must make a reasonable effort to have the document read to them.”

If you have any questions about this decision, or the defense of attorneys in general, please contact Andrew Jones  or Ashley Glazewski .


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