| Nickel v Goldsmith & Tortora, Attorneys at Law, P.C. |
| 2008 NY Slip Op 09570 [57 AD3d 496] |
| December 2, 2008 |
| Appellate Division, Second Department |
| George Nickel, Appellant, v Goldsmith & Tortora, Attorneys atLaw, P.C., Respondent. |
—[*1] Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Gary Petropoulos and James M. Meaneyof counsel), for respondent.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an orderof the Supreme Court, Nassau County (Brandveen, J.), entered November 9, 2007, which, in effect,granted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR3211 (a) (5) as time-barred.
Ordered that the order is affirmed, with costs.
The Supreme Court correctly, in effect, granted that branch of the defendant's motion which was todismiss the complaint pursuant to CPLR 3211 (a) (5) as time-barred. The plaintiff's cause of action torecover damages for legal malpractice is subject to a three-year statute of limitations (seeCPLR 214 [6]). Since the cause of action accrued no later than May 2002 and was not interposed untilJune 2007 it was time-barred (see McCoy v Feinman, 99 NY2d 295, 301 [2002]; Glammv Allen, 57 NY2d 87, 93 [1982]). The toll of the limitations period provided by CPLR 208 isavailable "to only those individuals who are unable to protect their legal rights because of an over-allinability to function in society" (McCarthy v Volkswagen of Am., 55 NY2d 543, 548 [1982];Santo B. v Roman Catholic Archdiocese ofN.Y., 51 AD3d 956, 958 [2008]). The conclusory assertions of the plaintiff's psychologist,who first treated the plaintiff in May 2005, are insufficient to satisfy this standard.
The plaintiff's remaining cause of action, which was to recover damages for fraud, was merelyincidental to the cause of action to recover damages for legal malpractice and was asserted [*2]only to avoid the three-year statute of limitations with respect to a causeof action to recover damages for legal malpractice (see Brick v Cohn-Hall-Marx Co., 276 NY259, 264 [1937]; Powers Mercantile Corp. v Feinberg, 109 AD2d 117, 120 [1985],affd 67 NY2d 981 [1986]). Accordingly, that cause of action also was properly dismissed(see Mohan v Hollander, 303 AD2d 473, 474 [2003]). Spolzino, J.P., Angiolillo, Dickersonand Belen, JJ., concur.