| 730 J & J, LLC v Polizzotto & Polizzotto, Esqs. |
| 2010 NY Slip Op 00244 [69 AD3d 704] |
| January 12, 2010 |
| Appellate Division, Second Department |
| 730 J & J, LLC, Respondent, v Polizzotto & Polizzotto,Esqs., Appellant. |
—[*1] Weg & Myers, P.C., New York, N.Y. (Dennis T. D'Antonio, Joshua L. Mallin, and Lisa N.Wall of counsel), for respondent.
In an action to recover damages for legal malpractice, the defendant appeals from an order ofthe Supreme Court, Kings County (Martin, J.), dated July 3, 2008, which, inter alia, denied thatbranch of the defendant's motion which was for summary judgment dismissing the complaint astime-barred without prejudice to renewal after completion of discovery.
Ordered that the order is affirmed, with costs.
The plaintiff, 730 J & J, LLC, retained the defendant law firm in 1998 to represent it inconnection with a foreclosure action. Specifically, the defendant was retained, inter alia, toconfirm a referee's report of sale on behalf of the plaintiff and to file a motion for leave to enter adeficiency judgment against the mortgagor.
On March 2, 2006, the plaintiff commenced this action to recover damages for legalmalpractice based on the defendant's failure to secure a deficiency judgment, the consequence ofwhich was the dismissal of the plaintiff's negligence action against the plaintiff's insurancebroker.
The defendant argues that the action is time-barred because the cause of action to recoverdamages for legal malpractice accrued on July 21, 1998, when it failed to obtain a deficiencyjudgment within 90 days from the delivery of the deed, and the complaint was filed on March 2,2006, after the three-year statute of limitations expired on July 21, 2001.
The plaintiff contends that the defendant's representation continued in the subject matter ofthe alleged malpractice until April 14, 2004, when the law firm of Weg & Myers replaced thedefendant as counsel.
Summary judgment based on the defense of the statute of limitations requires that adefendant make a prima facie showing that an action to recover damages for legal malpracticewas filed more than three years after the cause of action accrued (see CPLR 214 [6]; Rachlin v LaRossa, Mitchell & Ross, 8AD3d 461 [2004]), when "all the facts necessary to the cause of action have occurred and aninjured party can obtain relief in court" (McCoy v Feinman, 99 NY2d 295, 301 [2002][internal quotation marks omitted]). An action to recover damages for legal malpractice isdeemed to accrue on the date the [*2]malpractice was committed,not when it was discovered (see Shumsky v Eisenstein, 96 NY2d 164, 166 [2001]).
Under the doctrine of "continuous representation," the three-year statute of limitations forlegal malpractice is tolled while the attorney continues to represent the client in the same matterin which the malpractice allegedly occurred, after the alleged malpractice is committed(Shumsky v Eisenstein, 96 NY2d at 168). The parties must have a "mutualunderstanding" that further representation is needed with respect to the matter underlying themalpractice claim (McCoy v Feinman, 99 NY2d at 306).
Here, the defendant failed to establish its prima facie entitlement to summary judgmentdismissing the legal malpractice cause of action by demonstrating that the statute of limitationsexpired (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]). Accordingly, the Supreme Court properly denied that branch of the defendant's motionwhich was for summary judgment dismissing the complaint as time-barred without prejudice torenewal after completion of discovery.
The defendant's remaining contention is without merit. Rivera, J.P., Santucci, Chambers andHall, JJ., concur.