NY Commercial Division Blog

Court Considers Emails and Letters as “Documentary Evidence” in Dismissing Legal Malpractice Complaint Pursuant to CPLR 3211(a)(1) and (a)(7)

Citing “substantial documentary evidence” consisting of emails and letters, Justice Borrok of Manhattan’s Commercial Division concluded that a legal malpractice claim brought by former president of Universal Music Group’s (“UMG’s”) Republic Records, Charlie Walk was based on a “false narrative” and consequently dismissed the complaint pursuant to CPLR 3211(a)(1) and (a)(7).[1]

As early as January 2018, allegations began to surface that Walk, UMG’s then President of Republic Group, had engaged in a pattern of predatory behavior and misconduct toward women. Walk retained Marc E. Kasowitz and Kasowitz Benson Torres LLP (collectively, hereinafter, the “Defendants”), as well as other counsel, to advise him in connection with these allegations. Walk was advised by the Defendants and other counsel and in March 2018, voluntarily entered into a settlement agreement with UMG.

On March 25, 2021, Walk initiated an action against the Defendants for legal malpractice. The complaint alleged that Walk had entered into the settlement agreement with UMG without being fully informed by counsel as to the agreement’s meaning and his alternatives to settlement. Specifically, Walk contended that he was never advised that: (i) he was entitled to receive certain bonuses for fiscal year 2017, regardless of whether he was terminated for cause; (ii) UMG breached Walk’s employment agreement by threatening to fire him for “cause” for alleged conduct occurring outside the scope of his employment and by failing to conduct an adequate investigation of the allegations against him; (iii) he could have terminated his employment for “good reason” when UMG put him on leave, which would have entitled him to more compensation than a “cause” termination; and (iv) the confidentiality provisions in his agreement with UMG prevented him from discussing the terms of the settlement and disputing the facts of his departure.

Defendants moved to dismiss pursuant to CPLR 3211(a)(1) (defense founded on documentary evidence) and (a)(7) (failure to state a cause of action).  In support of their 3211(a)(1) argument, Defendants submitted certain letters and emails, along with Walk’s settlement agreement, employment agreement, and certain press coverage of his alleged misdeeds.[2]  As previously covered on this blog, CPLR 3211(a)(1) allows a defendant to “move for judgment dismissing one or more causes of action asserted against him on the ground that . . . a defense is founded upon documentary evidence.”  The statute itself does not define “documentary evidence” and the First and Second Departments have taken conflicting approaches to this issue—whereas the Second Department has repeatedly held that letters and emails “fail to meet the requirements for documentary evidence,” the First Department will consider such correspondence under CPLR 3211(a)(1), but only if their factual content is “essentially undeniable.”[3]

Justice Borrok found that the documentary evidence in the record, including the letters and emails submitted by Defendants, “unequivocally establish[ed] that the Defendants did in fact make the very arguments that Mr. Walk assert[ed] were not made to UMG,” and demonstrated that “the entire premise of [Walk’s] lawsuit [was] based on a false narrative.”[4]  First, contrary to Walk’s assertion, his employment agreement did not provide that he was entitled to his 2017 bonus in the event of a for cause firing by UMG and, in any event, the Defendants had asserted this same argument to UMG in a February 2018 letter.  Second, the allegations regarding Walk’s misconduct—the basis for UMG’s threats to terminate him—were not limited to incidents outside the scope of his employment.  Indeed, some of UMG’s then-current employees had come forward and confronted Walk and the allegations against him spanned a “substantial period of time.”[5] Moreover, like Walk’s assertion regarding his 2017 bonus, the Defendants made these arguments to UMG in February 2018. Third, email correspondence showed that Walk understood that a “good reason” termination entitled him to more money, that he had been advised by Defendants and other counsel regarding the settlement agreement and ultimately, that he accepted the strategy of settling the matter to avoid arbitration. Additionally, Walk and his counsel had been provided the specific language of the confidentiality and non-disparagement provisions of the settlement agreement, which Walk ultimately approved.

Justice Borrok held that the emails and letters in the record established that Walk was “well aware of the very issues that he now feigns a lack of knowledge of and that these very issues were discussed with the Defendants and his other lawyers.”[6]  Furthermore, Walk failed to allege facts that would suggest that he could prove his “case within a case” and show he would have achieved a better result than the settlement agreement absent his counsel’s alleged negligence—a requirement for prevailing on a claim of legal malpractice under New York law.  SeeKatz v. Essner, 136 A.D.3d 575, 576 (1st Dep’t 2016) (“Plaintiff failed to . . . meet the ‘case within a case’ requirement, demonstrating that ‘but for’ defendants’ conduct he would have obtained a better settlement.”).  As a result, he dismissed the action pursuant to both CPLR 3211(a)(1) and CPLR 3211(a)(7).

The Court’s decision in Walk v. Kasowitz Benson Torres LLP is a lesson to litigants in the Commercial Division, especially those located in the First Department: even at the motion to dismiss stage, parties are not entitled to their own facts, especially when those facts are contradicted by admissible documentary evidence.


[1] Walk v. Kasowitz Benson Torres LLP, 74 Misc. 3d 1203(A), 157 N.Y.S.3d 922, 2022 WL 188371 (Sup. Ct. 2022).

[2] See id., Index No. 651921/2021, NYSCEF Doc. No. 60 (Employment Agreement); NYSCEF Doc. No. 62 and 63 (February 16, 2018 and February 26, 2018 Letters); NYSCEF Doc. No. 64 (Confidential Settlement Agreement And General Release Of All Claims); NYSCEF Doc. Nos. 84 and 85 (Emails).

[3] Compare Gawrych v. Astoria Fed. Sav. & Loan, 148 A.D.3d 681, 682 (2d Dep’t 2017) with Amsterdam Hospitality Grp., LLC v. Marshall-Alan Assoc., Inc., 120 A.D.3d 431, 432 (1st Dep’t 2014); WFB Telecomms., Inc. v. NYNEX Corp., 188 A.D.2d 257, 259 (1st Dep’t 1992),.

[4] Walk, 74 Misc. 3d 1203(A), 157 N.Y.S.3d 922, 2022 WL 188371, at *1-2. 

[5] Id. at *5.

[6] Id. at *1.