Opinion
2014-05-2
Peter A. PRIOLA, III, Plaintiff–Appellant, v. Attorney Sheila FALLON, Megan Fallon and Fallon, Fallon & Bigsby, LLP, Defendants–Respondents.
Morgan Law Firm, P.C., Syracuse (William R. Morgan of Counsel), for Plaintiff–Appellant. Costello, Cooney & Fearon, PLLC, Syracuse (Paul G. Ferrara of Counsel), for Defendants–Respondents.
Morgan Law Firm, P.C., Syracuse (William R. Morgan of Counsel), for Plaintiff–Appellant.Costello, Cooney & Fearon, PLLC, Syracuse (Paul G. Ferrara of Counsel), for Defendants–Respondents.
PRESENT: SMITH, J.P., PERADOTTO, SCONIERS AND VALENTINO, JJ.
MEMORANDUM:
In this legal malpractice action, plaintiff appeals from an order granting defendants' motion for summary judgment dismissing the amended complaint on the ground that, inter alia, the action was time-barred. Plaintiff contends that Supreme Court erred in granting the motion because the statute of limitations was tolled by the continuous representation doctrine. We reject that contention. “A cause of action for legal malpractice accrues when the malpractice is committed” ( Elstein v. Phillips Lytle, LLP, 108 A.D.3d 1073, 1073, 969 N.Y.S.2d 330 [internal quotation marks omitted] ). Here, defendants established that any malpractice occurred, at the latest, in 2003 and thus made a prima facie showing that the action was time-barred ( see International Electron Devices [USA] LLC v. Menter, Rudin & Trivelpiece, P.C., 71 A.D.3d 1512, 1512, 898 N.Y.S.2d 388). “The burden then shifted to plaintiff[ ] to raise a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine” ( id.; see Macaluso v. Del Col, 95 A.D.3d 959, 960, 944 N.Y.S.2d 589), and plaintiff failed to meet that burden inasmuch as he failed to present the requisite “ ‘clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney’ ” to toll the statute of limitations ( Kanter v. Pieri, 11 A.D.3d 912, 913, 783 N.Y.S.2d 181;see Guerra Press, Inc. v. Campbell & Parlato, LLP, 17 A.D.3d 1031, 1032–1033, 794 N.Y.S.2d 189). In light of our determination, we do not address plaintiff's remaining contentions.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.