FENSTER v. SMITH (2007)

Order, Supreme Court, New York County (Louis B. York, J.), entered January 4, 2006, which, in an action for legal malpractice, granted defendant Smith's motion to dismiss the action as against him for failure to state a cause of action, unanimously affirmed, without costs.   Order, same court and Justice, entered February 1, 2006, which, insofar as appealed from, granted defendant Mondora's motion to dismiss, as time-barred, so much of plaintiffs' claim as is based on his failure to institute suit against Dr. Bernstein, unanimously reversed, on the law, without costs, the motion denied and that portion of plaintiff's claim reinstated.

 Accepting the facts alleged in the complaint as true and affording plaintiffs the benefit of every possible favorable inference (Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), the complaint against defendant Smith was properly dismissed since plaintiffs failed to demonstrate that they would have been successful in the underlying proceeding but for Smith's alleged malpractice (see Davis v. Klein, 88 N.Y.2d 1008, 1009-1010, 648 N.Y.S.2d 871, 671 N.E.2d 1268 [1996];  Hand v. Silberman, 15 A.D.3d 167, 789 N.Y.S.2d 26 [2005], lv. denied 5 N.Y.3d 707, 801 N.Y.S.2d 800, 835 N.E.2d 660 [2005] ).   The court properly considered Smith's affidavit since factual allegations presumed to be true on a CPLR 3211 motion may properly be negated by affidavits and documentary evidence (see Wilhelmina Models, Inc. v. Fleisher, 19 A.D.3d 267, 269, 797 N.Y.S.2d 83 [2005] ).

 However, the court erred in dismissing that portion of the cause of action against defendant Mondora alleging that he was negligent for failing to bring suit against Dr. Bernstein since there are sufficient allegations with respect to the application of the continuous representation doctrine (cf. CLP Leasing Co., LP v. Nessen, 12 A.D.3d 226, 784 N.Y.S.2d 535 [2004] ).

In light of the foregoing, we find no basis to impose sanctions against plaintiffs' counsel.

We have considered plaintiffs' remaining contentions and find them without merit.