Opinion
2015-05812, Index No. 604755/14.
04-27-2016
Michael QUINN, appellant, v. McCABE, COLLINS, McGEOUGH & FOWLER, LLP, et al., defendants, Picciano & Scahill, P.C., et al., respondents.
Schwartz & Ponterio, PLLC, New York, N.Y. (Matthew F. Schwartz of counsel), for appellant. Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Lisa L. Shrewsberry of counsel), for respondents.
Schwartz & Ponterio, PLLC, New York, N.Y. (Matthew F. Schwartz of counsel), for appellant.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Lisa L. Shrewsberry of counsel), for respondents.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for legal malpractice, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Winslow, J.), entered May 5, 2015, as granted that branch of the motion of the defendants Picciano & Scahill, P.C., and Sean Schaefer which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred.
ORDERED that the order is affirmed insofar as appealed from, with costs.
“On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, a defendant must establish, prima facie, that the time within which to sue has expired. Once that showing has been made, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period” (Tsafatinos v. Law Off. of Sanford F. Young, P.C., 121 A.D.3d 969, 969, 995 N.Y.S.2d 509 [citation omitted]; see Landow v. Snow Becker Krauss, P.C., 111 A.D.3d 795, 796, 975 N.Y.S.2d 119 ; Bullfrog, LLC v. Nolan, 102 A.D.3d 719, 719, 959 N.Y.S.2d 212 ). The statute of limitations for a cause of action alleging legal malpractice is three years (see CPLR 214[6] ; Farage v. Ehrenberg, 124 A.D.3d 159, 163, 996 N.Y.S.2d 646 ). “Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court, regardless of when the operative facts are discovered by the plaintiff” (Farage v. Ehrenberg, 124 A.D.3d at 164, 996 N.Y.S.2d 646 [citations omitted]; see McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 ; St. Stephens Baptist Church, Inc. v. Salzman, 37 A.D.3d 589, 590, 830 N.Y.S.2d 248 ).
Causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies (see Glamm v. Allen, 57 N.Y.2d 87, 91–94, 453 N.Y.S.2d 674, 439 N.E.2d 390 ; Farage v. Ehrenberg, 124 A.D.3d at 164, 996 N.Y.S.2d 646 ; see also Alizio v. Ruskin Moscou Faltischek, P.C., 126 A.D.3d 733, 735, 5 N.Y.S.3d 252 ). The continuous representation doctrine tolls the statute of limitations where there are clear indicia of “an ongoing, continuous, developing, and dependent relationship between the client and the attorney” (Aseel v. Jonathan E. Kroll & Assoc., PLLC, 106 A.D.3d 1037, 1038, 966 N.Y.S.2d 202 [internal quotation marks omitted]; see Farage v. Ehrenberg, 124 A.D.3d at 164, 996 N.Y.S.2d 646 ).
Here, the defendants Picciano & Scahill, P.C., and Sean Schaefer (hereinafter together the Picciano defendants) met their prima facie burden by establishing that the statute of limitations expired on March 28, 2009, three years after a consent to change attorney form was executed by the plaintiff, the Picciano defendants, and new counsel, and that they did not act on behalf of the plaintiff in the subject actions after the consent was signed (see Alizio v. Ruskin Moscou Faltischek, P.C., 126 A.D.3d at 735, 5 N.Y.S.3d 252 ). Therefore, the Picciano defendants met their prima facie burden of establishing that the three-year statute of limitations period for commencing an action alleging legal malpractice had expired at the time the plaintiff commenced this action on or about September 11, 2014 (see id. at 735–736, 5 N.Y.S.3d 252 ; see generally Bullfrog, LLC v. Nolan, 102 A.D.3d at 720, 959 N.Y.S.2d 212 ). Contrary to the plaintiff's contention, he failed to raise a question of fact as to whether the continuous representation doctrine tolled the running of the statute of limitations (see Landow v. Snow Becker Krauss, P.C., 111 A.D.3d at 797, 975 N.Y.S.2d 119 ; Bullfrog, LLC v. Nolan, 102 A.D.3d at 720, 959 N.Y.S.2d 212 ; Hasty Hills Stables, Inc. v. Dorfman, Lynch, Knoebel & Conway, LLP, 52 A.D.3d 566, 567–568, 860 N.Y.S.2d 182 ). Further, the plaintiff failed to establish that facts essential to justify opposition to the Picciano defendants' motion may exist, but, absent discovery, could not be stated (see CPLR 3211[d] ; Bennett v. Panos, 120 A.D.3d 729, 731, 991 N.Y.S.2d 372 ).
The plaintiff's remaining contention is without merit.
Accordingly, the Supreme Court properly granted that branch of the Picciano defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss, as time-barred, the complaint insofar as asserted against them.