Jun 21st, 2013

FKB Client Advisory by Andrew R. Jones

The Scope of Documents a Court may Consider Under CPLR 3211(a)(1) Two recent New York cases hold that Courts can properly dismiss legal malpractice actions, pre-discovery, based upon the “documentary evidence” of underlying pleadings, testimony, and affidavits.

Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Longmire: The Appellate Division, First Department Affirms Dismissal of a Legal Malpractice Action Finding that the Lower Court Properly Concluded a Defense was Founded on Documentary Evidence Based on Counterclaimant’s Underlying Testimony and Complaint

In this action seeking attorney’s fees, Longmire filed a counterclaim for legal malpractice against Warshaw LLP alleging that Warshaw negligently failed to pursue a claim for race-based termination, in opposition to an underlying summary judgment motion seeking dismissal of Longmire’s federal employment discrimination lawsuit against his former employer.

Warshaw moved to dismiss Longmire’s counterclaim under both CPLR 3211(a)(1) and (a)(7), arguing that Longmire failed to “meet the case-within-a-case” requirement of a legal malpractice action, as Longmire failed to show that he would have established a prima facie case of race-based discrimination “but for” Warshaw’s alleged negligence. Warshaw argued that Longmire’s underlying testimony and allegations in his underlying Complaint constituted documentary evidence that Longmire would not have prevailed on his cause of action for racebased termination, as Longmire testified/averred that: (i) he voluntarilyleft his former employment; and (ii) that if he was terminated at all, it was not based on his race. The lower Court agreed with Warshaw’s arguments, and granted Warshaw’s motion in its entirety.

Longmire appealed. In affirming the lower Court’s decision, the Appellate Division, First Department held that the lower Court properly considered the documents submitted by Warshaw as documentary evidence as they did not exceed the “scope” of documents that a court may review in ruling on a motion to dismiss. Specifically, the Appellate Division found that “prior statements or averments of parties or their agents in the course of litigation that refute an essential element of a plaintiff’s present claim may constitute documentary evidence within the meaning of CPLR 3211(a)(1).”

CE Riverhead, LLC vs. Cohen & Perfetto, LLP: The Supreme Court, New York County granted Dismissal of Plaintiff’s Legal Malpractice Action Finding a Defense was Founded on Documentary Evidence Based on Plaintiff’s Underlying Sworn Affidavit and Complaint

Riverhead alleged that “but for” Cohen & Perfetto LLP’s failure to timely cancel an underlying real estate commercial contract of sale, Riverhead would have been entitled to the return of its contract deposit from the seller of two parcels of real estate property.

Cohen & Perfetto, via Furman Kornfeld & Brennan LLP, moved to dismiss Riverhead’s Complaint, under both CPLR 3211 (a)(1) and (a)(7), arguing that Riverhead failed to state a cause of action. Cohen & Perfetto argued that Riverhead’s principal took a contrary position in the underlying litigation in a sworn affidavit in support of its underlying motion for summary judgment and its underlying Complaint by arguing that Riverhead was entitled to the return of the contract deposit from the sellers, as Cohen & Perfetto timely provided notice to the sellers of its intent to cancel the contract.

In granting Cohen and Perfetto’s motion, the Court found that dismissal was warranted pursuant to CPLR 3211(a)(1) and (a)(7) as the factual allegations in the legal malpractice allegations were flatly contradicted by the documentary evidence in the underlying litigation. Riverhead has noticed an appeal of the Decision, which remains pending at the time of writing. We are optimistic that the trial Court’s ruling will be upheld.


Legal malpractice cases can be costly to defend given that often discovery requires reexamination of the underlying issues – i.e.“case-within-a-case” analysis. The foregoing two decisions dismissing legal malpractice actions at the pleading stage should give insured attorneys, legal malpractice insurers, and defense counsel encouragement that costly discovery can sometimes be avoided. Careful examination for admissions and/or contrary positions taken within the underlying file or proceedings should therefore always take place as early as possible.

To discuss the above or this area of law, generally, in more detail, please feel free to contact Andrew R. Jones.

Warshaw LLP v Longmire pdf   |   CE Riverhead LLC pdf