| Maurice W. Pomfrey & Assoc., Ltd. v Hancock & Estabrook,LLP |
| 2008 NY Slip Op 03793 [50 AD3d 1531] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| Maurice W. Pomfrey & Associates, Ltd., Doing Business asPOMCO, et al., Appellants-Respondents, v Hancock & Estabrook, LLP,Respondent-Appellant. |
—[*1] Paduano & Weintraub LLP, New York City (Leonard Weintraub of counsel), fordefendant-respondent-appellant.
Appeal and cross appeal from an order of the Supreme Court, Onondaga County (Anthony J.Paris, J.), entered December 1, 2006 in a legal malpractice action. The order granted defendant'smotion in part and dismissed plaintiffs' first, third and fourth causes of action and the secondcause of action of the individual plaintiffs.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages arising from defendant'salleged legal malpractice in connection with the employment agreement of a former executiveemployee of plaintiff Maurice W. Pomfrey & Associates, Ltd., doing business as POMCO(POMCO). In the first cause of action, plaintiffs allege, inter alia, that defendant was negligent indrafting the employment agreement and in advising them of the effect of its terms. In the secondcause of action, plaintiffs allege that defendant was negligent in representing them in thelitigation instituted by the former executive employee for breach of the employment agreement,resulting in a judgment against them for $549,853.12.
We conclude that Supreme Court properly granted that part of defendant's motion seekingdismissal of the first cause of action, but our reasoning differs from that of the court. Defendantsought dismissal of the first cause of action based on documentary evidence (see CPLR3211 [a] [1]), and as time-barred (see CPLR 3211 [a] [5]), and we conclude that the courtshould have granted that part of defendant's motion as time-barred rather than based ondocumentary evidence. "Under CPLR 3211 (a) (1), a dismissal is warranted only if thedocumentary evidence submitted conclusively establishes a defense to the asserted claims as amatter of law" (Leon v Martinez, 84 NY2d 83, 88 [1994]), and here, the employmentagreement does not conclusively establish a defense to the first cause of action as a matter of law.According to [*2]plaintiffs, the terms of the employmentagreement did not accurately reflect their intentions or objectives, and defendant did not adhereto their instructions in drafting the employment agreement or accurately represent to them theeffect of its terms. The fact that plaintiffs are bound by the terms of the employment agreementdoes not defeat the first cause of action as a matter of law (see Arnav Indus., Inc. RetirementTrust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 305 [2001]). "[T]heconclusiveness of the underlying agreement does not absolutely preclude [a cause of] action forprofessional malpractice against an attorney for negligently giving to a client an incorrectexplanation of the contents of a legal document" (Bishop v Maurer, 9 NY3d 910, 911 [2007]), or for failing to draftan agreement accurately reflecting plaintiffs' understanding of the transaction (see Mandel, Resnik & Kaiser, P.C. v E.I.Elecs., Inc., 41 AD3d 386, 388 [2007]).
We nevertheless agree with defendant that the first cause of action was time-barred pursuantto CPLR 3211 (a) (5). That cause of action accrued in January 1994, when defendant's allegedmalpractice in drafting the employment agreement was committed (see Carnevali vHerman, 293 AD2d 698, 698-699 [2002]), and this action was not commenced until October2005, well past the expiration of the applicable three-year statute of limitations (seeCPLR 214 [6]). We reject plaintiffs' contention that the statute of limitations was tolled by thecontinuous representation doctrine. That doctrine "tolls the running of the statute of limitationson a cause of action against a professional defendant only so long as the defendant continues torepresent the plaintiff[s] 'in connection with the particular transaction which is the subject of theaction and not merely during the continuation of a general professional relationship' " (Transport Workers Union of Am. Local100 AFL-CIO v Schwartz, 32 AD3d 710, 713 [2006], lv dismissed 7 NY3d 922[2006], rearg denied 8 NY3d 942 [2007]). Although plaintiffs allege that defendantcontinued to provide legal services to them between 1994 and 2004, they did not seek or obtaindefendant's services in connection with the employment agreement until March 2000, more thanthree years after the statute of limitations had expired (see Carnevali, 293 AD2d at 699).
We further conclude that the court properly denied that part of defendant's motion seekingdismissal of the second cause of action pursuant to CPLR 3211 (a) (7) insofar as that cause ofaction is asserted on behalf of POMCO. Accepting the allegations as true, according POMCO thebenefit of every possible favorable inference arising therefrom, and evaluating the allegationsonly with respect to whether they fit within any cognizable legal theory, we conclude that thesecond cause of action states a cause of action for legal malpractice (see Gelfand v Oliver, 29 AD3d736, 737 [2006]; Feinberg vBoros, 17 AD3d 275, 276 [2005]). The contentions of defendant with respect to themerits of POMCO's allegations and the reasonableness of POMCO's litigation strategy are notappropriately resolved on a motion pursuant to CPLR 3211 (a) (7) (see generallyGelfand, 29 AD3d at 737). Present—Hurlbutt, J.P., Martoche, Fahey, Green andGorski, JJ.