| Goldman v Akin Gump Strauss Hauer & Feld LLP |
| 2007 NY Slip Op 10492 [46 AD3d 481] |
| December 27, 2007 |
| Appellate Division, First Department |
| Gerald Goldman et al., Appellants, v Akin Gump StraussHauer & Feld LLP et al., Respondents. |
—[*1] Godosky & Gentile, P.C., New York City (Richard Godosky of counsel), forrespondents.
Order and judgment (one paper), Supreme Court, New York County (Louis B. York, J.),entered May 8, 2006, which granted defendants' motion to dismiss the complaint and deniedplaintiffs' cross motion to amend the complaint, and dismissed the complaint, and order, samecourt and Justice, entered March 12, 2007, which denied plaintiffs' motion to renew,unanimously affirmed, with one bill of costs.
Plaintiffs were the general partners of limited partnerships that they sold in violation of theirfiduciary obligations to limited partners, as determined in subsequent arbitration proceedingswith the limited partners. In the instant action, plaintiffs claim, inter alia, that defendantscommitted legal malpractice in advising them to go ahead with the sale without warning them ofthe extent of their exposure to the limited partners. The claim was correctly dismissed astime-barred based on the fact that the action was commenced more than three years after the saleclosed (CPLR 214 [6]; see Bergman v Fingerit, 177 AD2d 448 [1991], lv denied79 NY2d 759 [1992]; see also Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994][malpractice cause of action accrues when injury occurs even if aggrieved party is then ignorantof the wrong or injury]), and documentary evidence that effectively precludes plaintiffs fromarguing that defendants' representation in the arbitrations was continuous with theirrepresentation in the sale. Such documentary evidence consists of the affidavit submitted byplaintiffs in a prior litigation that involved an unsuccessful attempt by a limited partner todisqualify defendants from representing plaintiffs in one of the arbitrations. Therein, one of theplaintiffs stated that while defendants were retained to advise plaintiffs and, if need be, serve astheir litigation counsel, in connection with litigation then being threatened by the limitedpartners, as to the sale itself, defendants were retained only to draw the documents necessary toconsummate a deal that had already been negotiated and agreed to. Holding plaintiffs to thisposition (see D & L Holdings v Goldman Co., 287 AD2d 65, 71-72 [2001], lvdenied 97 NY2d 611 [2002]), defendants' representation in the arbitrations, which involvedthe merits of the litigation that was being threatened by the limited partners at the time plaintiffsretained [*2]defendants, was distinct from their representation in"papering" the sale, which did not involve negotiating the terms of the sale or advising whetheror not to proceed with it (see CLPLeasing Co., LP v Nessen, 12 AD3d 226, 227 [2004]; Dignelli v Berman, 293AD2d 565 [2002]). We have reviewed the materials submitted by plaintiffs in their motion torenew, i.e., the other papers submitted in the prior litigation, and find that they do not warrant adifferent result. We have considered plaintiffs' other arguments and find them unavailing.Concur—Tom, J.P., Friedman, Nardelli and Catterson, JJ. [See 11 Misc 3d1077(A), 2006 NY Slip Op 50604(U).]