Opinion
10412 Index 154971/17
12-10-2019
JEMIMA O., individually and as a parent and natural guardian of J.N. and R.N., Plaintiff–Appellant, v. SCHWARTZAPFEL, P.C., et al., Defendants–Respondents, John Does 1–3, Defendants.
Quainton Law, PLLC, New York (Eden P. Quainton of counsel), for appellant. Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet, LLP, Farmingdale (Rondiene E. Novitz of counsel), for respondents.
Quainton Law, PLLC, New York (Eden P. Quainton of counsel), for appellant.
Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet, LLP, Farmingdale (Rondiene E. Novitz of counsel), for respondents.
Richter, J.P., Manzanet–Daniels, Gische, Webber, Kern, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about March 12, 2018, which granted defendants Schwartzapfel, P.C. and Daniel Poli's motion to dismiss the complaint as against them, unanimously affirmed, without costs. The motion court correctly found that plaintiff's causes of action for legal malpractice, violation of Judiciary Law § 487, negligent misrepresentation and negligent infliction of emotional distress were time-barred as they accrued on September 10, 2013, at the latest, and plaintiff did not commence the instant action until May 31, 2017, over eight months after the applicable three-year statute of limitations had already expired (see CPLR 214 ; Benjamin v. Allstate Ins. Co., 127 A.D.3d 1120, 1121, 7 N.Y.S.3d 550 [2d Dept. 2015] ; Colon v. Banco Popular N. Am., 59 A.D.3d 300, 300, 874 N.Y.S.2d 44 [1st Dept. 2009] ).
Plaintiff's claim for breach of fiduciary duty was also properly dismissed as untimely pursuant to the applicable three-year statute of limitations because plaintiff sought only money damages and not equitable relief (see Kaufman v. Cohen, 307 A.D.2d 113, 118, 760 N.Y.S.2d 157 [1st Dept. 2003] ).
Plaintiff's argument that the statute of limitations was tolled by reason of disability or insanity pursuant to CPLR 208 was properly rejected by the motion court, without a hearing. Plaintiff failed to put forth any evidence that would support a finding of disability or insanity sufficient to show that plaintiff was unable to function in society (see Santo B. v. Roman Catholic Archdiocese of N.Y., 51 A.D.3d 956, 958, 861 N.Y.S.2d 674 [2d Dept. 2008] ). In particular, she did not submit any doctors' affidavits or medical records documenting the severity of her condition (see Matter of Brigade v. Olatoye, 167 A.D.3d 462, 87 N.Y.S.3d 479 [1st Dept. 2018] ; Santana v. Union Hosp. of Bronx, 300 A.D.2d 56, 751 N.Y.S.2d 444 [1st Dept. 2002] ). Moreover, the record does not show that plaintiff was incapable of protecting her legal rights despite her mental health diagnosis (see Burgos v. City of New York, 294 A.D.2d 177, 178, 742 N.Y.S.2d 39 [1st Dept. 2002] ). Although we have some concerns about the actions of plaintiff's prior counsel, this does not alter the conclusion that this action is time-barred.
The complaint fails to state a cause of action for either negligent misrepresentation or negligent infliction of emotional distress on behalf of the children. There is no allegation that defendants made any representation to the children or that defendants engaged in any extreme and outrageous conduct (see Hernandez v. Central Parking Sys. of N.Y., Inc., 63 A.D.3d 411, 879 N.Y.S.2d 461 [1st Dept. 2009] ).
The motion court correctly found that the complaint fails to state a cause of action for fraudulent misrepresentation because plaintiff's claimed losses resulted from defendants' unauthorized withdrawal of her appeal and not from their purported false statements as to their ability to handle administrative proceedings (see Friedman v. Anderson, 23 A.D.3d 163, 167, 803 N.Y.S.2d 514 [1st Dept. 2005]. Because plaintiff has put forth no specific argument on appeal as to her cause of action for intentional infliction of emotional distress, such claim is deemed abandoned.
We have considered plaintiff's remaining arguments and find them unavailing.