Opinion
2015–06965 Index No. 606181/14
03-21-2018
Edward ROUBENI, et al., appellants, v. DECHERT, LLP, et al., respondents.
Jonathan E. Kroll & Associates, PLLC, Garden City, N.Y. (David J. Glass of counsel), for appellants. Petrillo Klein & Boxer LLP, New York, N.Y. (Guy Petrillo and Deborah Frankel of counsel), for respondents.
Jonathan E. Kroll & Associates, PLLC, Garden City, N.Y. (David J. Glass of counsel), for appellants.
Petrillo Klein & Boxer LLP, New York, N.Y. (Guy Petrillo and Deborah Frankel of counsel), for respondents.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ.
DECISION & ORDER Appeal from an order of the Supreme Court, Nassau County (Karen V. Murphy, J.), entered June 30, 2015. The order, insofar as appealed from, granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In September 2005, the defendant Dechert, LLP (hereinafter Dechert), was retained to provide legal services in connection with a bankruptcy proceeding, which was marked "closed" on October 13, 2006. In November 2014, the plaintiffs commenced this action to recover damages for legal malpractice against Dechert and one of its attorneys. The defendants moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. In an order entered June 30, 2015, the Supreme Court, among other things, granted that branch of the defendants' motion. The plaintiffs appeal. "In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable" ( Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d 788, 789, 51 N.Y.S.3d 183 ; see Stewart v. GDC Tower at Greystone, 138 A.D.3d 729, 729–730, 30 N.Y.S.3d 638 ). "An action to recover damages arising from legal malpractice must be commenced within three years, computed from the time the cause of action accrued to the time the claim is interposed" ( 3rd & 6th, LLC v. Berg, 149 A.D.3d 794, 795, 53 N.Y.S.3d 78 ; see CPLR 214[6] ; McCoy v. Feinman, 99 N.Y.2d 295, 755 N.Y.S.2d 693, 785 N.E.2d 714 ). "A cause of action for legal malpractice accrues when the malpractice is committed, not when it is discovered" ( Town of Wallkill v. Rosenstein, 40 A.D.3d 972, 973, 837 N.Y.S.2d 212 ). " ‘However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney's continuing representation of the client with regard to the particular matter terminates' " (Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d at 789, 51 N.Y.S.3d 183, quoting Aqua–Trol Corp. v. Wilentz, Goldman & Spitzer, P.A., 144 A.D.3d 956, 957, 42 N.Y.S.3d 56 ). "For the continuous representation doctrine to apply, ‘there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney’ " (Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d at 789, 51 N.Y.S.3d 183, quoting Luk Lamellen U. Kupplungbau GmbH v. Lerner, 166 A.D.2d 505, 506, 560 N.Y.S.2d 787 ).
Here, the defendants satisfied their initial burden by demonstrating that this legal malpractice action accrued, at the latest, when the bankruptcy proceeding was terminated in October 2006, which was more than three years before the commencement of this action (see Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d at 789, 51 N.Y.S.3d 183; Tsafatinos v. Law Off. of Sanford F. Young, P.C., 121 A.D.3d 969, 969, 995 N.Y.S.2d 509 ). In opposition, the plaintiffs failed to raise a question of fact as to whether the continuous representation doctrine tolled the running of the statute of limitations (see Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d at 789, 51 N.Y.S.3d 183; Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d 1085, 1087, 30 N.Y.S.3d 288 ).
Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.
BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.