| Rehberger v Garguilo & Orzechowski, LLP |
| 2008 NY Slip Op 03187 [50 AD3d 760] |
| April 8, 2008 |
| Appellate Division, Second Department |
| Frederick Rehberger, Appellant, v Garguilo &Orzechowski, LLP, et al., Respondents. |
—[*1] Nicoletti Hornig & Sweeney, New York, N.Y. (Michael F. McGowan of counsel), forrespondents Garguilo & Orzechowski, LLP, and Stanley E. Orzechowski. Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Thomas W. Hyland,Richard E. Lerner, and Joseph L. Francoeur of counsel), for respondent Jerry Garguilo.
In an action to recover damages for legal malpractice, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Suffolk County (Kerins, J.), dated May10, 2007, as granted the motion of the defendants Garguilo & Orzechowski, LLP, and Stanley E.Orzechowski to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a) (5) as time-barred and that branch of the separate motion of the defendant Jerry Garguilowhich was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211 (a)(5) as time-barred.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, themotion of the defendants Garguilo & Orzechowski, LLP, and Stanley E. Orzechowski to dismissthe complaint insofar as asserted against them is denied, and that branch of the motion of thedefendant Jerry Garguilo which was to dismiss the complaint insofar as asserted against him isdenied.
The plaintiff commenced this action to recover damages arising from legal malpracticeallegedly committed by the defendants while representing him in a declaratory judgment actionto enforce the buy-out provision of a stock agreement. In the order appealed from, the SupremeCourt, [*2]inter alia, dismissed the complaint as time-barred. Wereverse the order insofar as appealed from.
In support of their respective motions pursuant to CPLR 3211 (a) (5), each of the defendantsdemonstrated, prima facie, that the time in which to sue had expired and that the complaint wastime-barred as against them (see McCoy v Feinman, 99 NY2d 295 [2002]; Sabadie v Burke, 47 AD3d 913[2008]; Matter of Schwartz, 44AD3d 779 [2007]; Savarese v Shatz, 273 AD2d 219 [2000]; CPLR 214 [6]).However, in opposition, the plaintiff raised a triable issue of fact as to whether the statute oflimitations was tolled by the continuous representation doctrine (see Town of Wallkill v Rosenstein, 40AD3d 972 [2007]; Tropp vLumer, 23 AD3d 550 [2005]; Savarese v Shatz, 273 AD2d 219 [2000]). Thus,the complaint should not have been dismissed as time-barred. Fisher, J.P., Ritter, Dillon andMcCarthy, JJ., concur. [See 2007 NY Slip Op 31347(U).]