Legal Malpractice

The Missing Comma, Fraud and Legal Malpractice

By (Andrew Lavoott Bluestone)

In Seaview Mezzanine Fund, LP v. LoPresti, 2010 NY Slip Op 30350(U), decided by Justice York on February 18, 2010, in New York County, we see a well written explanation of several basic principals.  In this case a review of releases, of contract interpretation and the difference between a CPLR 3211(a)(7) and a CPLR 3211(a)(1) motion.

CPLR 3211(a)(7)  v.  CPLR 3211(a)(1) motion:   "When evaluating  a defendant's motion to dismiss, pursuant to CPLR 3211(a) the test is `not whether the plaintiff has artfully drafted the complaint,  but whether, deeming the complaint to allege whatever can be reasonably implied from its statements, a cause of action can be sustained." That's true for all CPLR 3211 motions except under (a)(1), where "A CPLR 3211(a)(1) motion to dismiss on the ground that the action is barred by documentary evidence...may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.'"

Contract interpretation:  "On a motion to dismiss, the interpretation of this contractual language is a question of law for the court to determine. `The fundamental rule of contract interpretation is that agreements are to be construed in accord with the parties intent...and the best evidence of what parties to a written agreement intend is what they say in their writing."

Releases:  Need there be actual consideration in a release?  No.  General Obligations Law 15-303 states:  A written instrument which purports to be a total or partial release of all claims, debts, demands or obligations, or a total or partial release of any particular claim...shall not be invalid because of the absence of consideration or of a seal.

Full post as published by New York Attorney Malpractice Blog on February 26, 2010 (boomark / email).