MEMORANDUM AND ORDER
Appeal from an order of the Supreme Court (Nolan Jr., J.), entered February 20, 2020 in Saratoga County, which, among other things, denied defendants motion to dismiss the complaint.
Plaintiff retained defendant, a law firm, to assist with negotiating a settlement agreement between her and the Town of Milton, her former employer, and the Towns supervisor. Plaintiff thereafter commenced this action alleging legal malpractice and breach of contract stemming from defendants negotiation of the settlement agreement. According to the complaint, defendant committed legal malpractice after a provision in the settlement agreement that was supposed to guarantee plaintiff future employment with Saratoga County was deemed unenforceable. Plaintiff further alleged that defendant compelled her to sign this agreement. The breach of contract claim was premised on allegations that defendant retained a monetary amount that exceeded the parties’ retainer agreement. Defendant, in a pre-answer motion, moved to dismiss the complaint under CPLR 3211. Supreme Court denied the motion. Defendant appeals. We affirm.
Defendant contends that Supreme Court erred in permitting plaintiff to submit late opposition papers to the motion. We disagree. The court retains the discretion to accept late opposition papers upon a showing of a valid excuse (see Wilcox v. Newark Val. Cent. Sch. Dist., 107 A.D.3d 1127, 1130, 967 N.Y.S.2d 432 [2013]; see generally CPLR 2004). As the court noted, plaintiff explained that the delay in submitting timely opposition was due to serious medical and health reasons of plaintiffs counsel. Also taking into account the lack of prejudice to defendant, the fact that defendant was given the opportunity to submit a reply (see Heath v. Normile, 131 A.D.3d 754, 756, 15 N.Y.S.3d 509 [2015]) and the policy of resolving cases on the merits (see Associates First Capital v. Crabill, 51 A.D.3d 1186, 1188, 857 N.Y.S.2d 799 [2008], lv denied 11 N.Y.3d 702, 864 N.Y.S.2d 389, 894 N.E.2d 653 [2008]), the court providently exercised its discretion in accepting plaintiffs late opposition (see Matter of Burkich, 12 A.D.3d 755, 756, 785 N.Y.S.2d 137 [2004]; Whiteford v. Smith, 168 A.D.2d 885, 885, 564 N.Y.S.2d 806 [1990]).
As to the merits, a cause of action for legal malpractice requires that plaintiff demonstrate that “[defendant] failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that [defendants] breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 [2007] [internal quotation marks and citation omitted]; see Schrowang v. Biscone, 128 A.D.3d 1162, 1162–1163, 9 N.Y.S.3d 420 [2015]). Defendant argues that plaintiff had ample time to discuss, review and ask questions about the terms of the settlement agreement prior to its execution. Defendant also maintains that plaintiff was aware of the possibility that she might not receive employment by the County.
The settlement agreement, however, did not state that plaintiff may be employed with the County. Rather, it provided that plaintiff “will be offered a position” with the County. Plaintiff averred that she believed that she was going to receive a job offer from the County and alleged that she relied on the representation that she would be employed with the County. She further alleged that defendant did not obtain the signature of a County representative to ensure that she would receive future employment with the County and that, absent such employment, her settlement compensation was grossly deficient. Plaintiff also averred that she was never counseled about how to protect her right to future employment with the County and alleged that, after she raised questions about the settlement agreement, an attorney with defendant told her that “the law firm was ‘done’ working on her case” and that she had to sign the agreement. Accepting plaintiffs averments and allegations as true (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994]; Berry v. Ambulance Serv. of Fulton County, Inc., 39 A.D.3d 1123, 1124, 834 N.Y.S.2d 396 [2007]) and inasmuch as the documentary evidence submitted by defendant does not conclusively refute them (see New York State Workers’ Compensation Bd. v. Program Risk Mgt., Inc., 150 A.D.3d 1589, 1594, 55 N.Y.S.3d 790 [2017]), Supreme Court correctly denied that part of the motion seeking dismissal of the legal malpractice claim (see Snyder v. Brown Chiari, LLP, 116 A.D.3d 1116, 1117, 983 N.Y.S.2d 659 [2014]; Soule v. Lozada, 232 A.D.2d 825, 825, 648 N.Y.S.2d 790 [1996]).
1
Regarding the breach of contract claim, plaintiff alleged in the complaint that the retainer agreement between the parties provided that defendant would receive 33% of any amount received by plaintiff as compensation. There is no dispute that defendant received $25,000 as payment for legal fees. The record, however, does not conclusively establish how this amount was calculated or how it represented 33% of plaintiffs total compensation. Taking into account that plaintiff received $10,000 as monetary compensation from the Town and other incidental benefits and according plaintiff the benefit of every possible favorable inference, defendant is not entitled to dismissal of the breach of contract claim at this juncture (see Dubon v. Drexel, 195 A.D.3d 991, 993, 151 N.Y.S.3d 126 [2021]; Dubrow v. Herman & Beinin, 157 A.D.3d 620, 621, 70 N.Y.S.3d 181 [2018]). Finally, defendants reliance on the voluntary payment doctrine is unavailing.
ORDERED that the order is affirmed, with costs.
FOOTNOTES
1
. Although the notice of motion stated that defendant was seeking dismissal under CPLR 3211(b), the memorandum of law in support of the motion referenced CPLR 3211(a)(1) and (7) and Supreme Court analyzed the motion under the standards applicable to that subdivision and paragraphs.
Aarons, J.
Egan Jr., J.P., Lynch, Clark and Pritzker, JJ., concur.