| Lincoln Place, LLC v RVP Consulting, Inc. |
| 2010 NY Slip Op 01587 [70 AD3d 594] |
| February 25, 2010 |
| Appellate Division, First Department |
| Lincoln Place, LLC, Plaintiff, v RVP Consulting, Inc., etal., Defendants. Robert Peters et al., Third-Party Plaintiffs-Appellants, v Michael E. Pekofsky,Esq., Third-Party Defendant-Respondent. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Jennifer Alampi ofcounsel), for respondent.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered July 2,2009, which denied third-party plaintiffs' motion for summary judgment and granted third-partydefendant's cross motion for summary judgment dismissing the third-party complaint,unanimously affirmed, with costs.
The third-party complaint alleging legal malpractice is time-barred, the action having beencommenced more than three years after the malpractice was committed (CPLR 214 [6];Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994]). Third-party defendantPekofsky negotiated a lease on behalf of third-party plaintiffs RVP Consulting and Robert Peters(collectively, Peters), as tenants, in 1997. He then assigned the lease, rather than designating alessee, thereby causing Peters, pursuant to the terms of the lease, to remain liable for the fullperformance of all the tenant's obligations thereunder. In 1998, the assignee defaulted in its rentobligations, triggering Peters's liability for the outstanding rent. This action was not commenceduntil 2002.
Contrary to Peters's contention, an adjudication of the meaning of Pekofsky's 1997 letter wasnot a prerequisite to the existence of an actionable injury. Indeed, while Peters may not havebeen aware until 2001 or 2002 that Pekofsky's actions could result in liability, it is not the dateon which Peters learned that malpractice had occurred, but the date on which the malpracticewas committed, that is relevant (WestVil. Assoc. Ltd. Partnership v Balber Pickard Battistoni [*2]Maldonado & Ver Dan Tuin, PC, 49 AD3d 270, 270[2008]). Peters's subjective belief that Pekofsky had designated a lessee rather than assigning thelease is of no consequence. Concur—Mazzarelli, J.P., Saxe, Acosta, DeGrasse andManzanet-Daniels, JJ.