| Byron Chem. Co., Inc. v Groman |
| 2009 NY Slip Op 03465 [61 AD3d 909] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Byron Chemical Company, Inc., Appellant, v Robert H.Groman et al., Respondents. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Marian C. Rice of counsel),for respondents Robert H. Groman and Groman, Ross & Tisman, P.C. White, Fleischner & Fino, LLP, New York, N.Y. (Evan A. Richman and Michael F. Daly ofcounsel), for respondent Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, LLP.
In an action to recover damages for legal malpractice, the plaintiff appeals from (1) an orderof the Supreme Court, Nassau County (Woodward, J.), dated December 5, 2007, which grantedthe motion of the defendants Robert H. Groman and Groman, Ross & Tisman, P.C., and theseparate motion of the defendant Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, LLP,pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against them astime-barred and denied its cross motion for summary judgment on the complaint, and (2) ajudgment of the same court dated December 20, 2007, which, upon the order, is in favor of thedefendants and against it dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed, and it is further,
Ordered that one bill of costs is awarded to the defendants appearing separately and filing[*2]separate briefs.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for reviewand have been considered on appeal from the judgment (see CPLR 5501 [a] [1]).
The plaintiff alleged that in 1993 the defendant attorney Robert H. Groman negligentlydrafted the mandatory bonus provision in an employment agreement because the wording wasambiguous as to whether the bonus was to be calculated on net or gross profits. In a separateaction later brought by the plaintiff's employee, the plaintiff was found liable for money owed tothe employee for calculating the bonus provision based on net profits rather than gross profits. In2006, the plaintiff brought this legal malpractice action against Groman, his firm, Groman, Ross& Tisman, P.C. (hereinafter the Groman Firm), and Forchelli, Curto, Schwartz, Mineo, Carlino& Cohn, LLP (hereinafter the Forchelli Firm), as successor in interest of the Groman firm. Thecomplaint alleged that Groman continued to act as corporate counsel to the plaintiffs between1993 and 2003. Groman and the Groman Firm moved pursuant to CPLR 3211 (a) (5) to dismissthe complaint insofar as asserted against them as time-barred, and the Forchelli Firm separatelymoved pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against themas time-barred, since the action was brought more than three years after the alleged malpractice.The Supreme Court granted the defendants' motions and denied that plaintiff's cross motion forsummary judgment on the complaint. The plaintiff appeals, and we affirm.
An action to recover damages for legal malpractice must be commenced within three yearsfrom accrual of the cause of action (see McCoy v Feinman, 99 NY2d 295, 301 [2002];CPLR 214 [6]). A legal malpractice cause of action accrues on the date the malpractice wascommitted, not when it was discovered (see Shumsky v Eisenstein, 96 NY2d 164, 166[2001]). Here, the defendants established that the legal malpractice cause of action wastime-barred by demonstrating that the alleged malpractice occurred in 1993 and the action wascommenced in 2006 (see CPLR 214 [6]).
Contrary to the plaintiff's contention, the statute of limitations was not tolled by thecontinuous representation doctrine (see Dignelli v Berman, 293 AD2d 565 [2002]; cf.Shumsky v Eisenstein, 96 NY2d at 168; see also Maurice W. Pomfrey & Assoc., Ltd. v Hancock & Estabrook, LLP,50 AD3d 1531 [2008]; Zaref v Berk & Michaels, 192 AD2d 346 [1993]). Thedefendants' subsequent representation in matters unrelated to the specific matter that gave rise tothe alleged malpractice was insufficient to toll the statute of limitations (see Dignelli vBerman, 293 AD2d at 565). Accepting the facts alleged in the plaintiff's complaint as true,there was a nine-year lapse between the defendants' representation as to the employmentagreements. The continuous representation doctrine does not contemplate such intermittentrepresentation (see Williamson vPricewaterhouseCoopers LLP, 9 NY3d 1, 9 [2007]; Shumsky v Eisenstein, 96NY2d at 167-168; Loft Corp. v Porco, 283 AD2d 556 [2001]). Accordingly, theSupreme Court correctly granted the defendants' motions to dismiss the complaint insofar asasserted against them as time-barred.
In light of our determination, we need not address the plaintiff's remaining contentions.Spolzino, J.P., Dillon, Florio and Belen, JJ., concur.