Harrison v. Constantino , 768 N.Y.S.2d 918 ( 2003 )

— Appeal from that part of an order of Supreme Court, Ontario County (Doran, J.), entered January 24, 2003, that denied in part defendants’ motion to dismiss the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied that part of defendants’ motion seeking dismissal of the complaint in this legal malpractice action. Viewing the facts alleged in the complaint as true and according plaintiffs the benefit of every possible favorable inference (see generally Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we conclude that plaintiffs have alleged that they had an attorney-client relationship with defendants (cf. Conti v Polizzotto, 243 AD2d 672, 673 [1997]). We further conclude that the facts alleged in the complaint as well as those set forth in the affidavit submitted by plaintiff Kevin J. Harrison in opposition to the motion to dismiss (see CPLR 3211 [c]; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]) are sufficient to state a cause of action for legal malpractice (see Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511, 513 [1990], lv dismissed 77 NY2d 940 [1991]; see also Weiner v Hershman & Leicher, 248 AD2d 193 [1998]).

The order on appeal also granted that part of defendants’ motion seeking, in the alternative, to disqualify plaintiffs’ counsel from further representation of plaintiffs “in connection with this action.” Plaintiffs did not cross-appeal from that part of the order. Nevertheless, the disqualified firm filed a respondents’ brief, and an attorney from that firm appeared for oral argument. Upon the attorney’s acknowledgment that the order has not been vacated, modified or stayed with respect to the disqualification of plaintiffs’ counsel, we do not consider either plaintiffs’ brief or the attorney’s oral argument in deciding this appeal. Present—Pigott, Jr., P.J., Pine, Hurlbutt and Gorski, JJ.