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Supreme Court, Appellate Division, Second Department, New York.

KANTROWITZ & GOLDHAMER, P.C., respondent, v. Kristine GELLER, a/k/a Fritzi Geller, appellant.

Decided: October 25, 1999

SONDRA MILLER, J.P., WILLIAM C. THOMPSON, GABRIEL M. KRAUSMAN, ANITA R. FLORIO and ROBERT W. SCHMIDT, JJ. Joseph J.A. Tringali, Jr., White Plains, N.Y., for appellant. Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y. (Reginald H. Rutishauser of counsel), for respondent.

In an action to recover legal fees, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Rockland County (Weiner, J.), dated January 27, 1999, as granted that branch of the plaintiff's motion pursuant to CPLR 3211(a)(7) which was to dismiss her counterclaim alleging legal malpractice.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The Supreme Court properly granted that branch of the plaintiff's motion which was to dismiss the defendant's counterclaim alleging legal malpractice.   Bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true on a motion to dismiss for failure to state a cause of action (see, Morone v. Morone, 50 N.Y.2d 481, 429 N.Y.S.2d 592, 413 N.E.2d 1154;  Meyer v. Guinta, 262 A.D.2d 463, 692 N.Y.S.2d 159).   Where, as here, the moving party offers evidentiary material, the court must determine whether the proponent of the pleading has a cause of action, not whether she has stated one (see, Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17;  Meyer v. Guinta, supra;  Doria v. Masucci, 230 A.D.2d 764, 646 N.Y.S.2d 363).   When read in conjunction with the evidentiary record, including a stipulation of settlement entered into in open court, the defendant's counterclaim fails to allege any material facts giving rise to a cognizable claim for legal malpractice (see, Sei Young Choi v. Dworkin, 230 A.D.2d 780, 782, 646 N.Y.S.2d 531).


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