YOUNIS v. Charles Farrell, Defendant-Appellant. (2009)

We affirm for reasons stated at Supreme Court.   We add only that, contrary to the contention of Charles Farrell (defendant), the court applied the appropriate standard of review in denying that part of the motion to dismiss the claim for legal malpractice against him pursuant to CPLR 3211(a)(7).   In determining such a motion, “[t]he facts pleaded are to be presumed to be true and are to be accorded every favorable inference, although ․ factual claims flatly contradicted by the record are not entitled to any such consideration” (Gershon v. Goldberg, 30 A.D.3d 372, 373, 817 N.Y.S.2d 322;  see Parola, Gross & Marino, P.C. v. Susskind, 43 A.D.3d 1020, 1021-1022, 843 N.Y.S.2d 104). Although we agree with defendant that some factual claims by plaintiff in the complaint were contradicted by evidentiary material that he appended to the complaint, the record establishes that the court's decision to deny the motion was not predicated upon those factual claims.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: