| Turner v Irving Finkelstein & Meirowitz, LLP |
| 2009 NY Slip Op 03158 [61 AD3d 849] |
| April 21, 2009 |
| Appellate Division, Second Department |
| James R. Turner III, Appellant, v Irving Finkelstein &Meirowitz, LLP, Respondent. |
—[*1] Kaufman Borgeest & Ryan LLP, New York, N.Y. (Jonathan B. Bruno and Bain R. Loucksof counsel), for respondent.
In an action to recover damages, inter alia, for legal malpractice, the plaintiff appeals froman order of the Supreme Court, Kings County (Jacobson, J.), dated September 18, 2007, whichgranted that branch of the defendant's motion pursuant to CPLR 3211 (a) (5) which was todismiss the complaint as time-barred.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was assaulted by a coworker at his place of employment in 1997. Thedefendant law firm represented the plaintiff in the ensuing claim before the Workers'Compensation Board (hereinafter the Board). The claim was disallowed, the Board affirmed thatdecision, and full Board review was denied. No later than May 2002, the defendant informed theplaintiff that its representation was complete. It also advised him of his right to appeal theBoard's decision to the Appellate Division, and referred him to an attorney who might have beenable to represent him on the appeal. The plaintiff, pro se, unsuccessfully pursued an appeal of thedenial of his Workers' Compensation claim to the Appellate Division.
In November 2006, the plaintiff, pro se, commenced the instant action, alleging that after hewas [*2]denied full Board review, the defendant failed to advisehim of "any other legal remedies" relating to the workplace incident. The defendant moved todismiss the complaint pursuant to CPLR 3211 (a) (1), (5) and (7), contending, inter alia, that ithad a complete defense founded on documentary evidence and that the complaint sounded inlegal malpractice and was barred by the statute of limitations. In opposition, the plaintiff assertedthat he suffered from a mental illness for which he had been hospitalized several times and, thus,he was entitled to a tolling of the statute of limitations pursuant to CPLR 208. The SupremeCourt rejected the plaintiff's claim because the medical records he relied on were not inadmissible form and, finding that the "gravamen of the lawsuit is one of legal malpractice,"dismissed the complaint as time-barred. Although the evidentiary facts alleged by the plaintiffreveal the existence of an issue of fact as to applicability of the insanity toll, we neverthelessaffirm on other grounds.
Pursuant to CPLR 3211 (a) (1) dismissal is warranted if documentary evidence conclusivelyestablishes a defense as a matter of law (see Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]; Goldman v Metropolitan Life Ins. Co.,5 NY3d 561, 571 [2005]; Held v Kaufman, 91 NY2d 425, 430-431 [1998]).Here, the defendant submitted the parties' retainer agreement, which clearly stated that itsrepresentation was limited to the proceeding before the Board.
Furthermore, to the extent that the plaintiff's complaint may be construed to assert causes ofaction alleging breach of contract, negligence, or fraud, the Supreme Court properly, in effect,dismissed those causes of action as duplicative of the legal malpractice cause of action (see Kvetnaya v Tylo, 49 AD3d608, 609 [2008]; Katz v Herzfeld& Rubin, P.C., 48 AD3d 640, 641 [2008]; Wright v Meyers & Spencer, LLP, 46 AD3d 805, 805-806[2007]; Town of Wallkill v Rosenstein,40 AD3d 972, 974 [2007]; Cummings v Donovan, 36 AD3d 648, 649 [2007]). Rivera, J.P.,Angiolillo, Eng and Belen, JJ., concur.