Solon v. Tormey , 809 N.Y.S.2d 382 ( 2006 )

Appeal from an order of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), entered January 6, 2004 in a legal malpractice action. The order, insofar as appealed from, denied that part of the motion of defendant Irwin E Underweiser seeking dismissal of the first amended complaint against him.

It is hereby ordered that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted in part and the first amended complaint against defendant Irwin E Underweiser is dismissed.

Memorandum: Joseph J. Solon (decedent) and Trinity Investors Group, Inc. commenced this action asserting causes of action for, inter alia, conversion and legal malpractice. Plaintiffs alleged that decedent’s former attorney, Irwin E Underweiser, Esq. (defendant) converted 400,000 shares of stock in Trinity Gas Corporation (Trinity Gas) that had been entrusted to him to hold for decedent and that he returned 400,000 shares of a different stock, from Trinity Energy Resources, Inc. (Trinity Energy). Supreme Court erred in denying that part of the motion of defendant pursuant to CPLR 3211 (a) (1) seeking dismissal of the first amended complaint against him based on documentary evidence. In support thereof, defendant submitted a “Stipulation and Order” entered in an action in federal court pursuant to which decedent had agreed to exchange the 400,000 shares of stock in Trinity Gas for the same number of shares of stock in Trinity Energy. Pursuant to that agreement, the District Court Judge personally delivered the stock certificates held by defendant to a transfer agent for conversion. Plaintiffs do not challenge the validity of the “Stipulation and Order,” and thus we conclude that the documentary evidence submitted by defendant “conclusively establishes a defense to the asserted [causes of action] as a matter of law” (Leon v Martinez, 84 NY2d 83, 88 [1994]). Present—Pigott, Jr., P.J., Hurlbutt, Gorski and Smith, JJ.