99th Ave. Holdings, LLC v. Schatz

99th Ave. Holdings, LLC v Schatz 2025 NY Slip Op 30979(U) March 13, 2025 Supreme Court, New York County Docket Number: Index No. 151688/2024 Judge: Emily Morales-Minerva Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. EMILY MORALES-MINERVA PART 42M Justice . . ------------------------------------X INDEX NO. 151688/2024 99TH AVENUE HOLDINGS, LLC MOTION DATE 06/27/2024 Plaintiff, MOTION SEQ. NO. 001 -v- LARRY H SCHATZ, DECISION + ORDER ON MOTION Defendant. ----------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 22, 23, 24, 25, 26, 27,28,29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39,40,41,42,43,44,45 were read on this motion to/for DISMISS

APPEARANCES:

Thomas D. Shanahan, P.C., New York, New York (Thomas D. Shanahan, Esq., of counsel) for Plaintiff.

Marshall Dennehey Warner Coleman & Goggin, New York, New York (Nicholas Peter Chrysanthem, Esq., of counsel) for Defendant.

HON. EMILY MORALES-MINERVA:

In this legal malpractice action, defendant LARRY H.

SCHATZ, moves, by notice of motion (sequence no. 001), pursuant

to CPLR § 3211 (a) (1), (5) and (7), 1 dismissing the complaint of

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plaintiff had assigned to TSI (see NYSCEF Doc . No. 002,

Complaint) .

On October 8, 2020, defendant demanded that Landlord

release the TI Funds "of $375,000.00 a s a final payment of [the ]

Tenant Improvement Allowance due to [plaintiff] plus the sum of

$250,000.00 as security for the issuance of a TCO [ ] which has

been issued" (NYSCEF Doc. No. 006, Demand Letter, dated October

08 , 2020) . Land l ord refused to release the funds.

Consequen t ly, on October 26, 20 20, p laintif f commenced an

action against TSI and Landlord to recover, among other things ,

the $625,0 00 .00 in funds al l egedly belonging to plaintiff (see

99th Avenue Holding s , LLC v TSI Hell's Kitchen LLC, New York

Communications Cente r Assoc ia tes, LP , SL Green Manag emen t, LLC

a nd RXR Realty LLC, Index No . 655667 / 2020 [A. Engoron, J . S.C.]

[Sup Ct, NY Cnty] [TSI Litigation] ) . Plaintiff retained non-party

Thomas Shanahan, Esq . (TS I Litiga t i on counsel), to represent it

in the TSI Litigat ion.

Throughout the TSI Litigation , TSI Lit igation counsel and

p l aintiff continued to confer with defendant (see NYSCEF Doc .

No . 18 , Email Exchanges between plaint iff , defendant, and TSI

lit igation counse l, dated November 5 , 2020 , through October 5,

2021). Though plaintiff successfully recovered the $250 , 000 . 00,

the court (A . Engo ron, J.S.C.) de clined to award plaintiff the

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Plaintiff opposes, and cross-moves for an order, pursuant

to CPLR § 3212, of summary judgment (see NYSCEF Doc. No. 33,

Notice of Cross-Motion).

ANALYSIS

MOTION TO DISMISS

Statute of Limitations

Pursuant to CPLR § 3211 (a) (5), a "party may move for

judgment dismissing one or more causes of action asserted

against him on the ground that [] the cause of action may not be

maintained because of the statute of limitations."

An action to recover damages arising from an attorney's

malpractice must be commenced within three years from the

accrual (see CPLR § 214 [6]). A legal malpractice claim accrues

"when all facts necessary to the cause of action have occurred

and an injured party can obtain relief in court" (~cCo~

Feinman, 99 NY2d 295, 301 [2002] quoting Ackerman v Price

Waterhouse, 84 NY2d 535, 541 [1994] [internal quotation marks

omitted]) .

Here, on October 8, 2020, defendant demanded that Landlord

release the $625,000.00 to plaintiff, which Landlord refused to

do (see NYSCEF Doc. No. 006, Demand Letter, dated October OB,

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2020). Thereafter, on October 26, 2020, plaintiff commenced the

TSI Litigation against Landlord to rec over the $625,000.00, and

retained new counsel to represent it in that proceeding. As a

general rule, the retention of the TSI Litigat i on counsel ended

the atto rney-client relationship between plaint i ff and defendant

(see Steinberg v Schnapp, 73 AD3d 171, 176 [1st Dept 201 0]; see

also Cohen v Grainer, Tesoriero & Bel l , 81 NY2d 655, 658 [1993]

Cerio v Koldin , 289 AD2d 1080 [4th Dept 2001 ) [finding that

attorney-client relationship ceased to exist when plaintiff

retained new counsel). Therefore, defendant avers that the

l egal malpractice cause of action accrued on or before October

26, 2020, and this action, commenced on February 25, 2 024, is

barred as untimely.

However, plaintiff alleges that defendant cont i nued to

confer with plaintiff and TSI Litigation counsel, as well as

provide le ga l advi ce and defense strategies, th roughou t the

entirety of the TSI Litigation, thereby tolling the statute of

limita tions pursuant to the continuous representation doctrine.

"The continuous representation doctrine tolls the statute

of limi tat ions . where there is a mutual understanding of

the need for further representation on the specific subject

underlying the malpractice claim" (Zorn v Gilbert, 8 NY3d 933 ,

934 [2007 ] quoting McCoy , 99 NY2d at 306). "For the continuous

representation doctrine t o apply t o an action sounding in legal

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malpractice, there must be clear indicia of an ongoing,

continuous, developing and dependent relationship between the

client and the attorney, which often includes an attempt by the

attorney to rectify the alleged act of malpractice" (Lavelle-

Tomko v Aswad & Ingraham, 191 AD3d 1142, 1145 [3d Dept 2021]

quoting Intl. Electron Devices (USA) LLC v Menter, Rudin &

Trivelpiece, P.C., 71 AD3d 1512, 1513 [4th Dept 2010]).

"[T]he continuous representation doctrine tolls the statute

of limitations only where the continuing representation pertains

specifically to the matter in which the attorney committed the

alleged malpractice" (Shumsky v Eisenstein, 96 NY2d 164, 168

[2001]; see Davis v Cohen & Gresser, LLP, 160 AD3d 484, 486 [1st

Dept 2018] [finding that in order to establish continuous

representation, the related matters must be "part of a

continuing, interconnected representation"). "Accordingly, the

doctrine tolls the running of the statute of limitations on

malpractice claims until the ongoing representation is

completed" (Encalada v McCarthy, Chachanover & Rosado, LLP, 160

AD3d 475, 476 (1st Dept 2019]).

At this juncture, particularly because plaintiff retained

new counsel in the TSI Litigation, the court can not determine

whether the continuous representation doctrine tolled the

statute of limitations. There are issues of fact as to whether

defendant's conferral with plaintiff and TSI Litigation counsel

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Lender LLC v FPG Maiden Holdings LLC, 233 AD3d 482, 484 [1st

Dept 2024]) .

Defendant produces the 2015 Lease to support his position

that plaintiff can not establish the "but forll causation element

of a legal malpractice cause of action (see NYSCEF Doc. No. 26,

Lease, dated April 20, 2015). Specifically, defendant argues

that (1) he did not represent plaintiff in negotiating and

executing the Lease, and (2) the Lease establishes that the

$375,000.00 at issue represents the final 10% installment of the

TI Funds to be paid to plaintiff upon procurement of the TCO,

which plaintiff failed to procure within the requisite time

frame. Therefore, it is defendant's position that plaintiff's

own negligence caused it to forfeit its entitlement to the

remaining $375,000.00 of the TI Funds.

However, this argument is unavailing. While it is

unconverted that defendant did not represent plaintiff in

negotiating and executing the Lease, defendant did represent

plaintiff in connection with the sale of the Gym, for which

defendant drafted the APA, Assignment, and Consent Agreement.

The APA, Assignment, and Consent Agreement are the documents at

issue here. Indeed, the crux of plaintiff's legal malpractice

cause of action centers on the allegation that defendant omitted

any reference to the $375,000.00 in those documents, precluding

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plaintiff from recovering the funds (see NYSCEF Doc. No. 002,

Complaint).

Further, a plain reading of Paragraph 78 of the Lease does

not support defendant's position that plaintiff's failure to

obtain the TCO within the first year of the lease term resulted

in a forfeiture of the $375,000.00. Specifically, subsection A

of Paragraph 78 provides that Landlord agreed to reimburse

plaintiff up to $³,750,000.00 for renovation costs incurred by

plaintiff within the first year of the lease term, and

subsection D provides that plaintiff's entitlement to

reimbursement extends only to costs actualJ-y incurred within the

first year of the lease term (NYSCEF Doc. No. 26, Lease).

Therefore, plaintiff was entitled to reimbursement of any

renovation costs incurred from May 1, 2015, through May 1, 2016,

and any costs incurred thereafter were deemed waived.

However, subsection C of Paragraph 78, which permitted

Landlord to withhold 10% of the reimbursement amount until

plaintiff opened for business and secured all building

department approvals, does not contain the same strict time

requirements as subsections A and D. It does not require

plaintiff to obtain the TCO within the first year of the lease

term to receive its final reimbursement of the TI Funds, as

defendant suggests. Instead, it provides that Landlord not issue

final reimbursement for any renovation costs incurred from May

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01, 2015, to May 01, 2016, until such time plaintiff secured the

TCO. Where, as here, "the terms of a contract are clear and

unamb i guous, the in tent of the parties must be found within the

four corners of the contract, giving a pract i cal interpretation

to the language employed and reading the contract as a whole"

(E ll ing t on v EMI Music, Inc., 24 NY3d 239, 244 [ 2014] citing

Greenfield v Philles Records, 98 NY2d 562, 569 [2002]).

Further, at the t i me the Consent Agreement was e n tered into

i n 2017, plaintiff had yet to obtain the TCO (see NYSCEF Doc.

No. 004, Consent Agreement at 1 3 [a]) . I f i t i s defenda nt 's

position that plaintiff was required to obtain the TCO within

the first year of the l ease term, then p laintiff was already

del inquent and forfeited its right to reimbursement of the

$375,000.00 when the Consent Agreement, APA, a nd Assignment were

ente r ed into . This position i s directly contradicted by the

affirmation defendant submitted on beha l f o f plaintiff in the

TSI Litigation, which plain tiff attaches to its complaint,

wherein defendant aff irms , "at the ti me of the assignment [on

December 11, 2017 ] , Landlord was admit tedly indebted to

[plaintiff ] in t he sum of $375,000.00 represent i ng the final

installment of the Tena nt Al l owance for building improvements"

(NYS CEF Doc. No. 009, Defendant's Affirmation i n Support of

Emergency App l ication in TSI Litigation) (emphasi s added) .

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In sum, the documentary evidence defendant submits does not

utterly refute plaintiff's factual allegations. Accordingly, at

this pre-discovery stage of the instant action, dismissal is not

appropriate (see IMO Indus. V Anderson Kill & Olick, 267 AD2d

10, 11 [1st Dept 1999] citing Leon, 84 NY2d at 88).

Failure to State a Cause of Action

"On a CPLR § 3211 (a) ( 7) motion to dismiss for failure to

state a cause of action, the complaint must be construed in the

light most favorable to the plaintiff and all factual

allegations must be accepted as true" (Alden Glob. Value

Recovery Master Fund, L.P. v KeyBank Nat'l Ass'n, 159 AD3d 618,

621 [1st Dept 2018] citing 219 Broadway Corp. v Alexander's,

Inc., 46 NY2d 506 [1979]). Further, on such a motion, the

complaint is to be construed liberally and all reasonable

inferences must be drawn in favor of the plaintiff (see Leon, 84

NY2d at 87). "Whatever an ultimate trial may disclose as to the

truth of the allegations, on such a motion, a court is to take

them as true and resolve all inferences which reasonably flow

therefrom in favor of the pleader" (Sander v Winship, 57 NY2d

391, 394 [1982] [emphasis added]).

In order to establish a cause of action for legal

malpractice, a plaintiff must establish "(l) the negligence of

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the attorney; (2) that the negligence was the proximate cause of

the loss sustainedi and (3) proof of actual damagesll (Ulico Cas.

Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 10

[1st Dept 2008]). •rt requires the plaintiff to establish that

counsel failed to exercise the ordinary reasonable skill and

knowledge commonly possessed by a member of the legal profession

and that 'but for' the attorney's negligence, the plaintiff

would have prevailed in the matter or would have avoided

damages" (id., quoting AmBase Corp. v Davis Polk & Wardwell, 8

NY2d 428, 434 [2007] [internal quotation marks omitted]).

Applying these principals -- and construing the complaint

liberally, drawing all reasonable inferences in favor of

plaintiff, and determining whether the facts as alleged fit into

any cognizable legal theory -- the court denies the motion to

dismiss plaintiff's complaint.

Plaintiff adequately pleads that (1) defendant, who

represented plaintiff in the sale of the Gym, owed plaintiff a

duty of care with respect to the legal advice and representation

he offered in connection with that sale; and (2) that

defendant's failure to memorialize the $375,000.00 in the APA,

Assignment, or Consent Agreement caused plaintiff to sustain the

loss of the $375,000.00 in TI funds (see NYSCEF Doc. No. 002,

Complaint). These allegations are sufficiently pled to assert

the elements of a legal malpractice cause of action.

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Though defendant relies on his own affidavit to refute the

factual allegations contained in plaintiff's complaint, whether

plaintiff can ultimately prevail on these allegations is not

relevant on this pre-answer motion to dismiss {see Cortlandt

street Recovery Corp. v Benderman, 31 NY3d 30, 47 [2018]).

Accordingly, defendant's motion (seq. no. 001) to dismiss

is denied entirely.

CROSS-MOTION FOR SUMMARY JUDGMENT

Summary judgment is a drastic remedy and is only

appropriate where the movant has established that there is no

question of fact on any issue which would require a trial (see

Andre v Pomeroy, 35 NY2d 361, 364 [1974]; see also Bronx-Lebanon

Hosp. Ctr. V Mount Eden Ctr., 161 AD2d 480, 480 [1st Dept

1990] [reasoning that "summary judgment is a drastic remedy, the

procedural equivalent of a trial [] it should not be granted

where there is any doubt about the issue"]). The court may

grant summary judgment upon prima facie showing of entitlement

to judgment as a matter of law, through admissible evidence

sufficient to eliminate material issues of fact (CPLR § 3212 [b];

Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP,

26 NY3d 40, 49 [2015]; Alvarez v Prospect Hos~, 68 NY2d 320,

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324 [1986); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851

[1985]) .

However, summary judgment is premature if as here --

discovery is in its infancy (see gu~man v City of New York, 171

AD3d 653, 653 [1st Dept 2019] [holding that summary judgment

motion was premature where no discovery had been conducted]; see

also New Hampshire Ins. Co. v Clearwater Ins. Co., 129 AD3d 99,

117 [1st Dept 2015] ["summary judgment motion was premature,

given it was made when discovery was still in its infancynJ)

Accordingly, it is

ORDERED that motion (sequence no. 001} of defendant LARRY H

SCHATZ to dismiss the complaint of plaintiff 99TH AVENUE

HOLDINGS, LLC is denied entirely; it is further

ORDERED that the cross-motion of plaintiff 99TH AVENUE

HOLDINGS, LLC for an order of summary judgment is denied

entirely; it is further

ORDERED that the parties shall appear for a virtual status

conference in Part 42M on June 23, 2025, at 10:30 A.M.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

3/13/2025 ~~~~(~ DATE RALES-MINERVA, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL ;ISPOSITION

APPLICATION:

CHECK IF APPROPRIATE:

Motion No. 001 GRANTED

SETTLE ORDER 0 DENIED

INCLUDES TRANSFER/REASSIGN

151688/2024 99TH AVENUE HOLDINGS, LLC vs. SCHATZ, LARRY H 8GRANTED IN PART

SUBMIT ORDER

FIDUCIARY APPOINTMENT □ OTHER

□ REFERENCE

Page 18 of 18

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Footnotes

[1] CPLR § 3211 (a) provides, as pertinent here, "A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: "(1) a defense is founded upon documentary evidence; or "(5) the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds; or "(7) the pleading fails to state a cause of action." 151688/2024 99TH AVENUE HOLDINGS, LLC vs. SCHATZ, LARRY H Page 1 of 18 Motion No. 001 [* 1] 1 of 18 plaintiff 99TH AVENUE HOLDINGS, INC. Plaintiff appears and opposes the motion. In addition to opposing defendant's motion, plaintiff moves, by cross-motion, pursuant to CPLR § 3212, for an order granting it summary judgment against defendant. Defendant appears and opposes plaintiff's motion. For the reasons set forth below, defendant's motion (seq. no. 001) is denied entirely, and plaintiff's cross-motion is denied entirely. BACKGROUND On or about April 20, 2015, plaintiff, 99TH AVENUE HOLDINGS, LLC (plaintiff), entered into a Lease Agreement (the Lease) with non-party New York Communications Center Associates, LP, (Landlord) for the premises located at 350 West 50th Street, New York, NY, ground-floor, operated as TMPL Gym (the Gym) (see New York State Court Electronic Filing System [NYSCEF] Doc. No. 26, Lease) . Pursuant to Paragraph 78 of the Lease, entitled "Landlord's Contribution", Landlord agreed to reimburse plaintiff up to $3,750,000.00 for renovation costs -- utenant improvement funds" -- incurred by plaintiff within the first year of the lease term (see id. at 1 78 [A]). The Lease further provided as follows: 151688/2024 99TH AVENUE HOLDINGS, LLC vs. SCHATZ, LARRY H Page 2 of 18 Motion No. 001

[2] of 18 [* 2] "{C) [Landlord ] sha ll pay t o [p lai ntiff ] the rema ining 1 0% [$375,000.00] of the [$3 , 750,000.00] promptly following the later to occur of the date ( i) [pl ain t iff] opens for busi ness to the gene ral public in the demised premises and ( ii) [plaintiff ] shall deliver to Landlord [] (y) all Building Department Fi li ng d ocument s, permi t s, and approvals, or su ch other evidence reasonably satisfactor y to Landl ord tha t the work is i n compliance wi th the Law [] " (D) No tw ithst anding the foregoing, [plain t iff ' s ] right t o co ll ect Landlord's Contr ibut ion shall exist only with respect to costs actual l y incurred by Te nant within the fi rst year o f the Term [], and to t he extent not ut ili zed within such period, Landlo rd' s Contribution shall be d eemed waived by Tenant and Landlord shall be under no further obligation to make any further payments to Tenant [] . " (id.). In October of 2016, plaintiff and non - party TSI Hel l 's Kitchen , LLC (TSI) entered into discussions to sell the Gym to TSI (see NYSCEF Doc. No . 00 2 , Comp lai nt). Plaintiff r e tained defendant LARRY H SCHATZ (defendant) to represent plaint i ff for t he p u r poses of th is sal e (see i d. ) . In a ccordanc e with t h e sa l e, defendant d raf ted and negotia ted an Asse t Purchase Agre ement (APA) and Assi gnment and Assumption of Lease {As signment ) o n behalf of plaintiff . On or abo u t November 22, 2017 , plaintiff, re p resented by defendant, and TS I entered into t he APA and Assignment (see NYSCEF Doc . No.

[003] , APA, dat ed November 22, 20 1 7; see a lso NYSCEF Doc. No. 004, Assignment , dated December 11 , 2017 ). De f endant a l so draf ted and negotiat ed a Consent Agreement, en te red into between plaintiff and Landl ord on Decembe r 12, 2017 (se e NYSCEF Doc. No. 004, Consent Ag r eement , dated December 12 , 151688/2024 99TH AVENUE HOLDINGS, LLC vs. SCHATZ, LARRY H Page 3 of 18 Motion No. 001 3 of 18 [* 3] 2017}. The Consent Agreement required plaintiff to "obtain a temporary certificate of occupancy (TCO} in connection with certain alterations performed by tenant [plaintiff] in the premises in respect of the permitted use" (id. at~ 3[a]}. It also provided that, "failure of [plaintiff] to have obtained the TCO as of the date of this Consent . . shall not be deemed to be a default under the Lease, provided and on the condition, that [plaintiff] shall promptly undertake and proceed with diligence to obtain such TCO" (id.). Pursuant to the same, plaintiff was required to give $250,000.00 to Landlord to hold in escrow until plaintiff obtained the TCO (see id. at~ 3 [b)} 2 Thereafter, in accordance with the Consent Agreement, plaintiff deposited $250,000.00 with Landlord, who had also held the $375,000.00, representing ten percent of the $3,750,00.00 owed to plaintiff for renovation expenses (the TI Funds) (see NYSCEF Doc. No. 002, Complaint). In total, Landlord retained $625,000.00. On or about September 22, 2020, the City of New York issued the TCO with an effective date of September 29, 2020 (see NYSCEF Doc. No. 005, TCO, dated September 29, 2020). However, Landlord refused to release the $625,000.00 to plaintiff because TSI had failed to make rent payments pursuant to the Lease, which 2 The Consent Agreement states, "Landlord may use any part of the TCO Security to satisfy any default or failure of Tenant" (NYSCEF Doc. No. 004, Consent Agreement, 1 3 [bl). 151688/2024 99TH AVENUE HOLDINGS, LLC vs. SCHATZ, LARRY H Page 4 of 18 Motion No. 001 [* 4] 4 of 18

[5] of 18 [* 5] remaining $375,000.00 (see NYSCEF Doc. No. 12, TSI Litigation Decision and Order, dated September 05, 2023). Thereafter, on February 25, 2024, plaintiff commenced the instant action against defendant LARRY H. SCHATZ for legal malpractice. In the complaint, plaintiff alleges that defendant, as counsel to plaintiff, had a duty to act in a manner consistent with an attorney with "54 years of experience in his field" (NYSCEF Doc. No. 002, Complaint). According to plaintiff, defendant failed to exercise such skill and knowledge when defendant omitted any reference to the $375,000.00 in the APA, Assignment or Consent Agreement, and that but for defendant's omission, plaintiff would have had a written document memorializing the $375,000.00 and been able to recover the funds as part of the TSI litigation (see id.}. Defendant timely filed the instant pre-answer motion to dismiss (seq. no. 001) plaintiff's complaint. In support of dismissal, defendant argues that the complaint (1) is time barred, pursuant to CPLR § 3211 (a) (5); (2) is barred by documentary evidence, pursuant to CPLR § 3211 (a) (1); and (3) fails to state a cause of action, pursuant to CPLR § 3211 (a) (7) (see NYSCEF Doc. No. 29, Memorandum of Law in Support of Motion to Dismiss). 151688/2024 99TH AVENUE HOLDINGS, LLC vs. SCHATZ, LARRY H Page 6 of 18 Motion No. 001 [* 6] 6 of 18

[9] of 18 [* 9] from October 22, 2020, through October 5, 2021, constitutes an attempt to rectify the alleged malpractice; whether there was a clear delineation of an ongoing and continuous relationship between plaintiff and defendant, and mutual understanding of the same; and whether the sale of the Gym and the TSI litigation were part of a continuing, interconnected representation (see Red Zone LLC v Cadwalader, Wickersham & Taft LLP, 27 NY3d 1048, 1050 [2016] [finding that questions of fact exist regarding whether the statute of limitations was tolled by the continuous representation doctrine in light of "the absence of any clear delineation of the period of such representationn and "the changed nature of the alleged legal representation"]; see ~lso Berger & Assoc. Attorneys, P.C. v Reich, Reich, & Reich, P.C.,

[144] AD3d 543 [1st Dept 2016]; Davis, 160 AD3d at 486). Further, defendant's submission of an affidavit disclaiming any mutual understanding of legal representation after October 26, 2020, is contradicted by the allegations in plaintiff's complaint, wherein plaintiff alleges that defendant was "actively involved in the [TSI] Litigation and his opinion and input were sought throughout" (see NYSCEF Doc. No. 23, Affidavit of Larry H. Schatz, Esq.; _see also NYSCEF Doc. No. 002, Complaint) _ These conflicting accounts further establish the existence of issues of fact and preclude dismissal of plaintiff's complaint on this pre-answer motion (see Red Zone 151688/2024 99TH AVENUE HOLDINGS, LLC vs. SCHATZ, LARRY H Page 10 of 18 Motion No. 001 [* 10] 10 of 18 LLC, 27 NY3d at 1050 [finding that issues of fact exist based on defendant's submission of affidavit disclaiming any mutual understanding of legal representation after certain time period] ) . Accordingly, because the continuous representation doctrine may apply, the motion to dismiss is denied (see 1232 s. Blvd LLC v FXFowle Architects, LLC, 233 AD3d 528, 529 [1st Dept 2024] [finding that defendant's motion to dismiss was properly denied where continuous representation doctrine toll may apply)) . Documentary Evidence "[On] a motion to dismiss on the ground that the action is barred by documentary evidence, such motion may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mut. Life Ins. Co. of New York, 98 NY2d 314, 326 [2002] citing Leon v Martinez, 84 NY2d 83, 88 [1994]). A motion to dismiss based on documentary evidence can only succeed if the documents submitted "utterly refute the factual allegations of the complaint and conclusively establish a defense to the claims as a matter of law" (MREF REIT 151688/2024 99TH AVENUE HOLDINGS, LLC vs. SCHATZ, LARRY H Page 11 of 18 Motion No. 001 11 of 18 [* 11]