Richard T. Fitzsimmons, et al., Plaintiffs–Respondents, v. LLP (2011)

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Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered March 10, 2011, which, in a legal malpractice action alleging, among other things, that defendants failed to notify plaintiffs of information indicating that money may have been misappropriated from the benefit funds of which plaintiffs were trustees, denied defendants' motion to dismiss the complaint based on documentary evidence and for failure to state a cause of action, unanimously affirmed, without costs.

The court applied the correct standard and properly held that the complaint states a cause of action for legal malpractice.   Plaintiff put forth sufficient detail to establish the negligence of the attorneys, that the negligence was the proximate cause of the losses sustained by the benefits funds, and actual damages to those funds (see Leder v. Spiegel, 9 NY3d 836, 837 [2007], cert denied 552 U.S. 1257 [2008];  O'Callaghan v. Brunelle, 84 AD3d 581, 582 [2011] ).   Plaintiffs were not required to allege the specific scope of defendants' duties, given the absence of a governing retainer agreement (see Greenwich v. Markhoff, 234 A.D.2d 112, 114 [1996] ).   Moreover, the documentary evidence—including Form 5500s, minutes of a 1997 Board meeting, and Department of Labor letters—does not conclusively disprove plaintiffs' allegations (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977] ).   Plaintiffs' expert affidavit was properly considered to remedy any defects in the complaint (see Leon v. Martinez, 84 N.Y.2d 83, 88 [1994] ).

We have considered defendants' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK