Barghout v. Dweck

—Order, Supreme Court, New York County (Emily Goodman, J.), entered on or about July 25, 1996, which denied defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) and/or for summary judgment dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered October 24, 1996, unanimously dismissed, as abandoned, without costs. The amended verified complaint adequately alleges the elements of a legal malpractice action, as summarized in Logalbo v Plishkin, Rubano & Baum (163 AD2d 511, 513, lv dismissed 77 NY2d 940). The court properly denied defendants’ motion for summary judgment as premature since it was made before issue was joined (City of Rochester v Chiarella, 65 NY2d 92, 101). Defendants’ submission of various letters, memorandums and draft agreements do not establish a defense founded upon 191 documentary evidence (CPLR 3211 [a] [1]), because they do not resolve all of the factual issues (see, Lake Placid Vil. v Lake Placid Main St. Corp., 90 AD2d 873, 874). Concur—Ellerin, J. P., Nardelli, Rubin and Mazzarelli, JJ.