| Loria v Cerniglia |
| 2010 NY Slip Op 00112 [69 AD3d 583] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Louis Loria, Appellant, v Nat Cerniglia,Respondent. |
—[*1] Henry Stanziale, Mineola, N.Y. (Thomas Stanziale of counsel), for respondent.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals froman order of the Supreme Court, Nassau County (Brandveen, J.), entered March 13, 2009, whichgranted that branch of the defendant's motion which was pursuant to CPLR 3211 (a) (5) todismiss the complaint as time-barred.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendant's motion which was to dismiss the second cause of action as time-barred,and substituting therefor a provision denying that branch of the motion; as so modified, the orderis affirmed, without costs or disbursements.
The Supreme Court properly granted that branch of the defendant's motion which was todismiss the first cause of action, alleging legal malpractice, as time-barred. The action wascommenced on August 14, 2008, and the three-year statute of limitations (see CPLR 214[6]) began to run on August 12, 2005, when the plaintiff signed a consent to change attorneyform, relieving the defendant as counsel in the underlying action (see Frost Line Refrig., Inc. v Gastwirth,Mirsky & Stein, LLP, 25 AD3d 532, 532-533 [2006]; Sommers v Cohen, 14 AD3d 691,692 [2005]; Marro v Handwerker,Marchelos & Gayner, 1 AD3d 488 [2003]; Daniels v Lebit, 299 AD2d 310[2002]).
However, the second cause of action, alleging that the defendant charged an excessive fee,was not duplicative of the first cause of action, and should not have been dismissed (see Boglia v Greenberg, 63 AD3d973, 976 [2009]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Miller, Leventhal andChambers, JJ., concur.