The following papers were read on this motion: Papers Numbered

Defendant, inSync Litigation Support, LLC (inSync), moves for an order, pursuant to CPLR 3211(a)(1) and (7), dismissing the complaint. Plaintiffs, Deshon Butler (Butler) and Peter M. Agulnick, P.C. (Agulnick), oppose the motion.

Plaintiffs commenced this action with the electronic filing of a summons and complaint [*2]on December 18, 2015. 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. al., Supreme Court, Queens County, Index Number 703219/2014 (the underlying action). 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. 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 asserts a cause of action for negligence and a cause of action for breach of contract.

Defendant contends that documentary evidence directly contradicts the allegations of plaintiffs' complaint. 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 [2d Dept 2003]; Sta-Brite Servs., Inc. v Sutton, 17 AD3d 570 [2d Dept 2005]). 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. v Novelty Crystal Corp., 105 AD3d 840 [2d Dept 2013]).

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. 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 opposition to inSync's motion to dismiss, Agulnick disputes the authenticity and veracity of the documentation submitted by inSync. He avers that after receiving a confirmatory email from inSync on May 14, 2014 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. 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.

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. inSync contends that plaintiffs cannot have suffered any damages because the underlying action is still pending. 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.

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).

Defendant also seeks dismissal of plaintiffs' complaint, pursuant to CPLR 3211(a)(7), on the ground that it fails to state a cause of action. 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 [plaintiffs'] 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 [1994]).

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. In making that argument, inSync relies upon Kleeman v Rheingold (81 NY2d 270 [1993]), 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. While the Court of Appeals held that an attorney owes a nondelegable duty to his or her client to exercise care in the service of process, the Court specified that its decision did not consider the right of an attorney who has been held liable for the negligence of a retained process server to pursue whatever contractual or tort remedies that the attorney may have against the process server.

The fact that Agulnick owed a nondelegable duty to Butler to ensure that service of process in the underlying action was properly completed, does not preclude a claim against inSync for its alleged role in the failure to serve such process.^[FN1] The cases cited by defendant in which a client's initial counsel was granted summary judgment dismissing the legal malpractice claims against it when the client had hired subsequent counsel are inapposite herein.

To survive a motion to dismiss for failure to state a cause of action made pursuant to CPLR 3211(a)(7), plaintiffs need not demonstrate that they actually sustained damages, they need only plead allegations from which damages attributable to defendant's conduct may reasonably be inferred (Fielding v Kupferman, 65 AD3d 437 [1st Dept 2009]; Mackey Reed Elec., Inc. v Morrone & Assoc., P.C., 125 AD3d 822 [2d Dept 2015]).

The complaint in the underlying action asserts causes of action for: (1) violation of 42 USC § 1983; (2) false arrest/imprisonment; (3) battery; (4) negligence; and (5) negligent hiring and retention. The court would note that since the acts which form the basis of the claims in the underlying action took place in January 2012, the causes of action for false arrest/imprisonment and battery were already time-barred by the applicable one year statute of limitations (CPLR 215[3]) when the underlying action was commenced on May 12, 2014. Therefore, only the causes of action for violation of 42 USC § 1983; negligence; and negligent hiring and retention, which have three year statutes of limitation (CPLR 214[5]), remained viable when Agulnick sent the summons and complaint in the underlying action to inSync for service in May 2014. Any damages occasioned by inSync's alleged failure to serve process would be limited to those remaining causes of action.

inSync argues that there can be no damages because the underlying action is still pending and has not been dismissed. But as already noted, the fact that the underlying action still appears on the records of the Queens County Clerk does not establish that the action is still viable. inSync further argues that if there are any damages, they are attributable to Agulnick's failure to ensure that service was made within 120 days of the commencement of the underlying action as required by CPLR 306-b. However, the relative culpability of inSync and Agulnick for the failure to complete service of process in the underlying action cannot be determined on this motion to dismiss.

inSync also argues that plaintiffs' complaint fails to adequately state the elements [*3]necessary for a cause of action for breach of contract, particularly with regard to Butler, who never dealt with inSync. Plaintiffs' cause of action for breach of contract is rather briefly stated. However, giving plaintiffs the benefit of every favorable inference, as is required on a motion to dismiss, the complaint sufficiently sets forth the necessary elements for a cause of action for breach of contract. Moreover, the allegations of the complaint are sufficient to plead that Butler was an intended third-party beneficiary of the agreement between Agulnick and inSync (Town of Huntington v Long Is. Power Auth., 130 AD3d 1013 [2d Dept 2015]).

Accordingly, defendant's motion for an order, pursuant to CPLR 3211(a)(1) and (7), dismissing the complaint is DENIED.

This constitutes the decision and order of this court. All applications not specifically addressed herein are denied.