Pre-Answer Dismissal of complaints is given outsized importance in legal malpractice litigation. Anecdotally, a higher percentage of legal malpractice cases are dismissed pre-answer than those in the general population of litigation cases. Zeppieri v Vinson 2021 NY Slip Op 00348
Decided on January 21, 2021 Appellate Division, Third Department describes how 3211(a)(1) is used.
“”A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint as barred by documentary evidence may be properly granted only if the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law. To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity” (Koziatek v SJB Dev. Inc., 172 AD3d 1486, 1486  [internal quotation marks and citations omitted]). “[I]t is clear that judicial records, as well as . . . any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Jenkins v Jenkins, 145 AD3d 1231, 1234  [internal quotation marks and citations omitted]; see Magee-Boyle v Reliastar Life Ins. Co. of N.Y., 173 AD3d 1157, 1159  [internal quotation marks, brackets and citation omitted]).[FN1]
In support of their motion, defendants submitted the July 2018 order, the transcript of the bench trial and an email that had been accepted into evidence. The July 2018 order clearly qualifies as documentary evidence. As Supreme Court observed, the July 2018 order “refutes plaintiffs’ primary contention that defendants’ failure to object to Flacke’s testimony was the proximate cause of plaintiffs’ damages.” Where Supreme Court specifically states that its order is based on the decision from the underlying action, we find ourselves with “the proper case” in which a judicial record qualifies as appropriate documentary evidence sufficient to defeat the action (Jenkins v Jenkins, 145 AD3d at 1234). Moreover, even if the court also relied on the underlying transcript, contrary to plaintiff’s contention, there is no per se prohibition on said reliance, where, as here, the contents of the transcript are undeniable (see Tyree v Castrovinci, 164 AD3d 1399, 1400 ). We agree that Supreme Court properly granted defendants’ motion to dismiss the amended complaint based upon documentary evidence (see Ganje v Yusuf, 133 AD3d 954, 957 ; Doller v Prescott, 167 AD3d 1298, 1300 ). Given our finding, the remainder of plaintiffs’ arguments are academic.”