![]() In making that argument, inSync relies upon Kleeman v Rheingold (81 NY2d 270 ), in which the Court of Appeals found that an attorney may be held vicariously liable to his or her client for the negligence of a process server whom the attorney has hired on behalf of that client. InSync contends that plaintiffs fail to state a cause of action against it because Agulnick, as Butler's lawyer in the underlying action, had a nondelegable duty to prosecute the case, monitor deadlines and meet the filing requirements. When deciding a motion to dismiss for failure to state a cause of action, the Court is obliged to accept "the facts as alleged in complaint as true, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83 ). The documents submitted by inSync fail to definitively contradict the factual allegations contained in plaintiffs' complaint and fail to conclusively establish a defense to plaintiffs' claims and therefore do not justify dismissal of plaintiffs' complaint pursuant to CPLR 3211(a)(1).ĭefendant also seeks dismissal of plaintiffs' complaint, pursuant to CPLR 3211(a)(7), on the ground that it fails to state a cause of action. However, the mere fact that the underlying action still appears in the Queens County Clerk's records fails to establish that the action is still viable. inSync contends that plaintiffs cannot have suffered any damages because the underlying action is still pending. ![]() In further support of its motion to dismiss, inSync also submits a copy of the record of the underlying action on file with the Queens County Clerk. He further avers that during the roughly 15-year period he had been working with inSync, it had never failed to serve something he had asked to be served and notified him promptly by email if there was ever a problem. He avers that after receiving a confirmatory email from inSync on that his request for service would be processed, he never received any communication that there was a problem with service, and he presumed that inSync had served both Koledin and the City of New York in the underlying action. In opposition to inSync's motion to dismiss, Agulnick disputes the authenticity and veracity of the documentation submitted by inSync. Those documents fail to make any mention of whether inSync made any attempt to serve the City of New York in the underlying action, as requested by Agulnick. In support of its motion to dismiss, inSync offers barely decipherable, self-generated records, which indicate that the papers in the underlying action were sent back to Agulnick when inSync was unable to make service on Michael Koledin, the individual defendant in the underlying action. The documentary evidence must utterly refute the factual allegations in the complaint, resolve all factual issues as a matter of law and conclusively dispose of the claims at issue (Yue Fung USA Enters., Inc. A complaint may be dismissed based upon documentary evidence, pursuant to CPLR 3211(a)(1), only if the factual allegations contained in the complaint are definitively contradicted by the evidence submitted or if the evidence conclusively establishes a defense (Yew Prospect v Szulman, 305 AD2d 588 Sta-Brite Servs., Inc. The complaint asserts a cause of action for negligence and a cause of action for breach of contract.ĭefendant contends that documentary evidence directly contradicts the allegations of plaintiffs' complaint. The complaint concludes that plaintiffs have been damaged because the underlying action could not be pursued due to the expiration of the statute of limitations after inSync failed to make service. The complaint further alleges that inSync accepted the job, but failed to serve the papers as requested and never had any further communication with Agulnick. al., Supreme Court, Queens County, Index Number 703219/2014 (the underlying action). The complaint alleges that Agulnick engaged InSync to serve a summons and complaint on behalf of Butler upon two of the defendants in Butler v the City of New York, Koledin, et. ![]() Plaintiffs commenced this action with the electronic filing of a summons and complaint on December 18, 2015. ![]() Plaintiffs, Deshon Butler (Butler) and Peter M. The following papers were read on this motion: Papers Numberedĭefendant, inSync Litigation Support, LLC (inSync), moves for an order, pursuant to CPLR 3211(a)(1) and (7), dismissing the complaint.
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