Opinion
6340 Index 152264/16
04-19-2018
ESTATE OF Renate SMULEWICZ, et al., Plaintiffs–Appellants, v. MELTZER, LIPPE, GOLDSTEIN & BREITSTONE, LLP, Defendant–Respondent.
Peyrot & Associates, P.C., New York (David C. Van Leeuwen of counsel), for appellants. L'Abbate, Balkan, Colavita & Contini, LLP, Garden City (Noah Nunberg of counsel), for respondent.
Peyrot & Associates, P.C., New York (David C. Van Leeuwen of counsel), for appellants.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City (Noah Nunberg of counsel), for respondent.
Acosta, P.J., Manzanet–Daniels, Tom, Oing, Singh, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered March 16, 2017, which granted defendant's motion to dismiss the complaint as time-barred, unanimously affirmed, without costs.
Defendant established its entitlement to dismissal on statute of limitation grounds by submitting evidence that the malpractice occurred in 2008, but plaintiff did not commence this action until March 2016, well beyond the three-year limitation period for legal malpractice ( CPLR 214[6] ; see McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002] ; Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541, 620 N.Y.S.2d 318, 644 N.E.2d 1009 [1994] ; Glamm v. Allen, 57 N.Y.2d 87, 93, 453 N.Y.S.2d 674, 439 N.E.2d 390 [1982] ). Even accepting plaintiffs' continuous-representation argument, there is no evidence that such continued representation went beyond, at most, July 16, 2012, which still renders plaintiffs' action untimely. Plaintiffs' argument that the limitation period was tolled by the decedent's alleged dementia is also unavailing, as there is no evidence that the decedent suffered from such disability at the time the claim accrued ( CPLR 208 ), or that it rendered her "unable to protect [her] legal rights because of an over-all inability to function in society" ( McCarthy v. Volkswagen of Am., 55 N.Y.2d 543, 548, 450 N.Y.S.2d 457, 435 N.E.2d 1072 [1982] ; see Burgos v. City of New York, 294 A.D.2d 177, 742 N.Y.S.2d 39 [1st Dept. 2002] ).
Furthermore, the court properly rejected plaintiffs' argument for further discovery, as plaintiffs offer no basis to conclude that additional discovery would lead to evidence of additional continuous representation by defendant or of the decedent's mental condition at the time the claim accrued. "The mere hope that discovery may reveal a course of continuous treatment ..., does not warrant denial of the motion [to dismiss]" ( Cracolici v. Shah, 127 A.D.3d 413, 413, 4 N.Y.S.3d 506 [1st Dept. 2015] ).