By notice of motion dated March 1, 2007, Defendant Howard Weiswasser seeks dismissal of plaintiff's complaint against him pursuant to CPLR §3211(a)(1) and §3211(a)(7). Defendant argues that a defense based upon documentary evidence bars the action and that plaintiff, therefore, cannot state a cause of action for legal malpractice in a criminal case.

The parties appeared in Part 6 of this Court for oral argument on May 30, 2007, and decision was reserved.

FACTS AND PROCEDURAL BACKGROUND [*2]

In 1999, plaintiff was indicted in Kings County Supreme Court, Criminal Term, under indictment number 3361/98, alleging murder in the second degree and other charges relating to the homicide of one Donald Holloman. This indictment was based on the shooting of Mr. Holloman on November 21, 1982, nearly seventeen years prior to the indictment.

Defendant Howard Weiswasser was appointed pursuant to County Law § 18-b plaintiff's defense counsel in that case. At trial, the jury acquitted plaintiff of murder in the second degree, but convicted him of the lesser included offense of manslaughter in the first degree. Plaintiff was subsequently sentenced to an indeterminate term of incarceration of eight to sixteen years. Defendant Weiswasser then filed a timely notice of appeal on behalf of plaintiff.

Co-defendants who have not moved for similar relief were assigned as appellate counsel for plaintiff and the conviction was affirmed on appeal. People v. Turner, 281 AD2d 568, 723 NYS2d 43 (2nd Dept. 2001). Leave to the Court of Appeals was denied. People v. Turner, 96 NY2d 908, 730 NYS2d 807 (2001). Defendant Weiswasser did not specifically raise the statute of limitations defense to the manslaughter charge at trial, nor did co-defendants raise the issue on appeal.

Plaintiff eventually applied to the Appellate Division, Second Department for a writ of error corum nobis to vacate his conviction on the ground that he was denied effective assistance of counsel during his criminal trial. Specifically, plaintiff alleged that defendant Weiswasser's failure to raise the statute of limitations as a defense to the lesser included charge of manslaughter resulted in his conviction.^[FN1] The Appellate Division held that the manslaughter charge should not have been submitted to the jury, set aside plaintiff's conviction, and dismissed the indictment. People v. Turner, 10 AD2d 458, 781 NYS2d 163 (2nd Dept. 2004). This decision was affirmed by the Court of Appeals. People v. Turner, 5 NY3d 476, 806 NYS2d 154 (2005).

Plaintiff thereafter commenced the instant suit for legal malpractice against his trial counsel and appellate counsel for failing to raise this "winning argument." People v. Turner, supra at 481. In his complaint plaintiff alleges that his conviction was vacated, that the indictment was dismissed and that he "was and is innocent of the crime for which he was convicted and sentenced."

LAW AND APPLICATION

The court for purposes of a motion pursuant to CPLR § 3211 must accept the factual allegations contained in the complaint as true. See Becker v. Schwartz, 46 NY2d 401, 408, 413 NYS2d 895, 386 NE2d 807 (1978). The pleading must also be afforded a liberal construction in making a determination as to whether the facts as alleged fit within any cognizable legal theory. See Leon v. Martinez, 84 NY2d 83, 87-8, 614 NYS2d 972, 638 NE2d 511 (1994).

Insofar as a cause of action for legal malpractice is concerned, plaintiff must allege "(1) that the defendant failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community, (2) that such negligence was the proximate cause of the actual damages sustained by plaintiff, and (3) that, but for the defendant's negligence, the plaintiff would be successful in the underlying action." William v. Donovan, 36 [*3]AD3d 648, 828 NYS2d 475 (2nd Dept. 2007). Further, when negligent representation amounting to malpractice is alleged to have occurred during a criminal proceeding, plaintiff must also allege "his innocence or a colorable claim of innocence" to the underlying criminal charges. Britt v. Legal Aid Society, 95 NY2d 443, 446, 718 NYS2d 264, 741 NE2d 109 (2000). See also Carmel v. Lunney, 70 NY2d 169, 518 NYS2d 605, 511 NE2d 1126 (1987).^[FN2]

In addition, to open the door for even a colorable claim of innocence, criminal defendants must free themselves of the conviction, for the conviction precludes those potential plaintiffs from asserting innocence in a civil suit." Britt v. Legal Aid Society, supra at 447. "It is only when the criminal proceeding has been terminated without a conviction that a plaintiff can assert innocence or at the very least a colorable claim thereof." Id. at 448.

Defendant argues that plaintiff cannot colorably allege innocence because four independent witnesses testified at his trial that plaintiff actually shot Donald Holloman and the jury found plaintiff guilty of manslaughter in the first degree. In support of these assertions, defendant relies on the trial transcripts and jury verdict sheet, respectively, as documentary evidence. In essence, defendant urges this court to dismiss the complaint because plaintiff actually committed the crime of which he was convicted, even though the conviction was later overturned.

But it is well settled that if the pleading states a cause of action, and the motion to dismiss is based on documentary evidence, such documentary evidence must conclusively establish a defense to the asserted claims as a matter of law. See Roth v. Goldman, 254 AD2d 405, 406, 679 NYS2d 92 (2d Dept. 1998). Here, since plaintiff has successfully challenged the criminal judgment and alleged innocence in the complaint, his claim of innocence — while it may not be compelling — cannot be viewed as less than "colorable" for the purposes of a motion pursuant to CPLR § 3211. See Casement v. O'Neill, 28 AD3d 508, 812 NYS2d 649 (2d Dep't 2006). As noted above, in considering such a motion, the factual allegations in the complaint must be accepted as true and be liberally construed. Thus, reliance on the jury verdict sheet and transcripts by defendant does not conclusively establish "a defense to the asserted claims as a matter of law." Roth v. Goldman, supra at 406.

Defendant's motion is therefore denied. This constitutes the decision and order of the court.

Plaintiff directed to settle Order on Notice.

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J. S. C.