DECISION & ORDER Defendant’s motion to dismiss the complaint is denied.BackgroundThis legal malpractice case arises out of defendant’s relationship with plaintiff’s sister (“Anne”). Defendant met Anne in 1988 and began a friendship that lasted until Anne passed away on July 25, 2016. Defendant also represented Anne in various legal matters including, but not limited to, an uncontested divorce in the 1990s, a real estate transfer in 2003 and a lease agreement for a studio in Queens in 2010.Plaintiff contends that her sister sought legal advice from defendant to ensure that the disposition of her artwork would conform to her wishes. Plaintiff alleges that defendant failed to prepare or execute an updated will, prepare an updated inventory of assets and create a trust (or similar vehicle) to convey Anne’s artwork as she desired. Plaintiff maintains that after. Anne passed away, her estate has faced numerous baseless claims and that these problems arise directly from defendant’s malpractice.Anne last updated her will in 2003 and plaintiff insists that in the thirteen years before her death, she had made many changes to her assets and had become estranged from her husband. Plaintiff contends that during a deposition in a parallel proceeding in Queens County Surrogate’s Court, defendant admitted that he had not advised Anne about updating her will and waited until the final months of her illness when Anne was no longer able to attempt to complete the required tasks.Plaintiff also alleges that there were a series of meetings between defendant and Anne about the sale and conservation of her artwork. At a meeting on June 30, 2016, plaintiff argues that defendant prepared three separate durable power of attorney (“POA”) documents for Anne to execute and that two of the three were executed. Plaintiff insists that defendant did not include a statutory gift rider to these POAs which would have allowed an agent to assist Anne with estate planning.Defendant moves to dismiss and contends that although he represented Anne in certain legal matters, he did not represent her in connection with any estate planning. Defendant argues that Anne was his friend and he tried to help her but his assistance had nothing to do with his occupation. Defendant argues that he had no experience with estate planning and gave Anne a recommendation for another attorney when she expressed an interest in creating a trust for her artwork.Defendant argues that plaintiff failed to properly plead a legal malpractice claim because plaintiff does not allege facts demonstrating that an attorney-client relationship existed. Defendant contends that plaintiff has only set forth conclusory facts and that plaintiff failed to plead actual and ascertainable damages.In opposition, plaintiff insists that Anne did not want her purportedly estranged spouse, Philippe Jacquet, to posses the majority of her artwork and defendant’s failure to comply with this desire has caused unnecessary litigation expenses for the estate. Plaintiff argues that it has articulated actual and ascertainable damages because defendant’s failure to act forced Anne’s estate to make distributions of Anne’s artwork from an outdated will rather than from a trust that could continue her legacy. Plaintiff also claims the artwork has lost value.In reply, defendant contends that plaintiff cannot show that the estate would have obtained a more favorable outcome but for defendant’s alleged malpractice. Defendant insists that he never undertook to establish the trust nor did Anne expect him to do so.Discussion“When considering these pre-answer motions to dismiss the complaint for failure to state a cause of action, we must give the pleadings a liberal construction, accept the allegations as true and accord the plaintiffs every possible favorable inference. We may also consider affidavits submitted by plaintiffs to remedy any defects in the complaint” (Chanko v. American Broadcasting Companies Inc., 27 NY3d 46, 52, 29 NYS3d 879 [2016]).“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v. Shayne, Dachs, Corker & Sauer, 8 NY3d 438, 442, 835 NYS2d 534 [2007] [internal quotations and citations omitted]).“While a plaintiff’s unilateral belief does not confer upon him or her the status of a client, an attorney-client relationship may exist in the absence of a formal retainer agreement. To establish an attorney-client relationship there must be an explicit undertaking to perform a specific task” (Terio v. Spodek, 63 AD3d 719, 721, 880 NYS2d 679 [2d Dept 2009]).Plaintiff has stated a cause of action for legal malpractice and defendant’s motion to dismiss is denied. Here, the Court must focus initially on the complaint which alleges that Anne wanted to place her artwork in a trust, sought defendant’s assistance in creating that trust and that a trust was never created (NYSCEF Doc. No. 2,
16, 17, 22). Although defendant points to his own testimony in a parallel proceeding in Surrogate’s Court as proof that he never represented Anne in an estate planning capacity, that is not enough to justify dismissal. The Court must take plaintiff’s allegations as true- and those claims contend that defendant was Anne’s long-time attorney, he prepared three POA documents for Anne to sign just a few weeks before she died and defendant’s failure to create a trust or update the will caused Anne’s estate damage. That states a cause of action for legal malpractice.Plaintiff’s affidavit also defeats defendant’s motion. She claims that Anne told a group of people, including defendant, on June 30, 2016 that she had asked defendant to form a trust and that she witnessed defendant and Anne have a private meeting in which Anne signed papers including a POA (NYSCEF Doc. No. 18,
