| HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP |
| 2009 NY Slip Op 04964 [63 AD3d 534] |
| June 18, 2009 |
| Appellate Division, First Department |
| HNH International, Ltd., et al., Appellants, v PryorCashman Sherman & Flynn LLP, Now Known as Pryor Cashman LLP, Respondent, et al.,Defendants. |
—[*1] Pryor Cashman LLP, New York (Gideon Cashman of counsel), respondent pro se.
Judgment, Supreme Court, New York County (Eileen Bransten, J.), entered March 25, 2008,dismissing the complaint as against defendant Pryor Cashman LLP, and bringing up for reviewan order, same court and Justice, entered March 19, 2008, which granted said defendant's motionto dismiss the complaint, unanimously reversed, on the law, with costs, the motion denied andthe complaint reinstated. Appeal from the aforesaid order unanimously dismissed, without costs,as subsumed in the appeal from the judgment.
Plaintiffs allege that defendant, a law firm, incorrectly advised them concerning the early20th century sound recordings they proposed to reengineer, remaster and distribute as CDs. Afterthe CDs had been manufactured and distributed, plaintiffs were sued and found liable forcommon-law copyright infringement.
The court dismissed the legal malpractice complaint, pursuant to CPLR 3211 (a) (1), basedon documentary evidence from which it concluded that the state of the law at the time the advicewas given was unsettled and defendants therefore had not " 'failed to exercise the ordinaryreasonable skill and knowledge commonly possessed by a member of the legal profession' " atthat time (quoting Darby & Darby v VSI Intl., 95 NY2d 308, 313 [2000]).
We conclude, however, that the state of the law was not so unsettled at the time the advicewas given as to bar as a matter of law plaintiffs' claim that a reasonably skilled attorney wouldhave advised that the CDs were or might be entitled to common-law copyright protection andwould not have advised that the release of the CDs would not result in any copyright liability.Although defendant maintains that it did advise plaintiffs of the possibility of common-lawliability and did not advise plaintiffs that the release of the CDs would not result in any copyrightliability, we must accept the facts alleged in the complaint as true and accord plaintiffs thebenefit of every possible favorable inference (Arnav Indus., Inc. Retirement Trust v Brown,Raysman, Millstein, Felder & [*2]Steiner, 96 NY2d 300, 303[2001]). The determination whether defendant exercised the requisite level of skill and care mustawait expert testimony (compare Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr &Solis-Cohen LLP, 23 AD3d 243 [2005] [expert testimony required], with Darby &Darby, supra [legal malpractice counterclaim dismissed on summary judgment]).
The statute of limitations was tolled as to defendant because the attorneys who initiallyhandled the matter continued to represent plaintiffs in the matter, albeit at different law firms,until 2005 (see Antoniu v Ahearn, 134 AD2d 151 [1987]). Concur—Gonzalez,P.J., McGuire, Moskowitz and DeGrasse, JJ. [See 19 Misc 3d 1107(A), 2008 NY SlipOp 50589(U).]