| Kvetnaya v Tylo |
| 2008 NY Slip Op 02115 [49 AD3d 608] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Yelena Kvetnaya, Appellant, v Marino Tylo,Respondent. |
—[*1] Kaufman, Borgest & Ryan, LLP, New York, N.Y. (Michael Furman and Lynn M. Ducketteof counsel), for respondent.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from anorder of the Supreme Court, Kings County (Martin, J.), dated November 16, 2006, which grantedthat branch of the defendant's motion which was pursuant to CPLR 3211 (a) (5) to dismiss thecomplaint as time-barred.
Ordered that the order is modified, on the law, by deleting the provision thereof granting somuch of the motion which was to dismiss the cause of action to recover damages for legalmalpractice as time-barred, and substituting therefor a provision denying so much of the motion;as so modified, the order is affirmed, without costs or disbursements.
The plaintiff commenced this action against the defendant to recover damages for legalmalpractice, breach of contract, and breach of fiduciary duty in connection with the defendant'srepresentation of her in a prior matrimonial action. The plaintiff claims that the defendant failedto properly advise her of her rights to equitable distribution and failed to advise her of apurported conflict of interest in connection with the preparation of a stipulation of settlement inthe matrimonial action. The defendant moved to dismiss the complaint, contending, inter alia,that the legal malpractice cause of action was time-barred.
An action to recover damages for legal malpractice must be commenced within three yearsafter accrual (see CPLR 214 [6]; 203 [a]). Pursuant to the continuous representationdoctrine, the statute of limitations to recover damages for legal malpractice is tolled while theattorney continues to represent the client as to the same matter underlying the malpractice claim(see Shumsky v [*2]Eisenstein, 96 NY2d 164, 167-168[2001]). "The continuous representation doctrine tolls the statute of limitations where 'there is amutual understanding of the need for further representation on the specific subject matterunderlying the malpractice claim' " (Town of Wallkill v Rosenstein, 40 AD3d 972, 973-974 [2007],quoting McCoy v Feinman, 99 NY2d 295, 306 [2002]).
The cause of action to recover damages for legal malpractice accrued when the defendantallegedly failed to advise the plaintiff of her equitable distribution rights and failed to disclose aconflict of interest (see Venturella-Ferretti v Kinzler, 306 AD2d 465, 466 [2003]; see also Zorn v Gilbert, 8 NY3d933, 934 [2007]; McCoy v Feinman, 99 NY2d 295, 305 [2002]). However, thedefendant's representation of the plaintiff ended, at the earliest, on November 5, 2001, when thespecial referee signed the judgment of divorce. The doctrine of continuous representation tolledthe statute of limitations at least until that date (see Sommers v Cohen, 14 AD3d 691, 692-693 [2005]; Gaslowv Phillips Nizer Benjamin Krim & Ballon, 286 AD2d 703, 706 [2001]; see also Shumskyv Eisenstein, 96 NY2d at 169-170). Since this action was commenced on October 25, 2004,the Supreme Court erred in dismissing the cause of action to recover damages for legalmalpractice as time-barred.
However, the Supreme Court properly dismissed the causes of action alleging breach ofcontract and breach of fiduciary duty. Those causes of action arise from the same facts as thelegal malpractice cause of action, do not allege distinct damages, and are thus duplicative of thelegal malpractice cause of action (seeShivers v Siegel, 11 AD3d 447 [2004]; Daniels v Lebit, 299 AD2d 310 [2002]).
The defendant's remaining contentions are without merit. Skelos, J.P., Fisher, Dillon andMcCarthy, JJ., concur.