| International Electron Devices (USA) LLC v Menter, Rudin &Trivelpiece, P.C. |
| 2010 NY Slip Op 02343 [71 AD3d 1512] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| International Electron Devices (USA) LLC et al., Appellants, vMenter, Rudin & Trivelpiece, P.C., Respondent. |
—[*1] Thorn Gershon Tymann & Bonanni, LLP, Albany (Matthew H. McNamara of counsel), fordefendant-respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, Onondaga County(Deborah H. Karalunas, J.), entered July 1, 2009 in a legal malpractice action. The order andjudgment granted defendant's motion for summary judgment and dismissed the amendedcomplaint.
It is hereby ordered that the order and judgment so appealed from is unanimously reversedon the law without costs, the motion is denied, and the amended complaint is reinstated.
Memorandum: Plaintiffs retained defendant to represent them in their purchase of certainbusiness assets and commercial real property (hereafter, property). Plaintiffs purchased theproperty in "as is" condition, and the closing occurred on October 26, 2004. Approximately twoyears later, plaintiffs were cited by the Environmental Protection Agency (EPA) forcontamination on the property requiring abatement at an estimated cost of $8 million. OnOctober 21, 2008, plaintiffs commenced this legal malpractice action alleging that defendant wasnegligent in, inter alia, failing to conduct a Phase II environmental investigation prior to theclosing.
We agree with plaintiffs that Supreme Court erred in granting defendant's motion forsummary judgment dismissing the amended complaint on the ground that it was time-barred. Asplaintiffs correctly concede, the three-year statute of limitations applicable to a legal malpracticecause of action accrued on October 26, 2004, the date of the closing and thus when themalpractice was committed, and it expired on October 26, 2007 (see CPLR 214 [6];Shumsky v Eisenstein, 96 NY2d 164, 166 [2001]; see also Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 7[2007]). Defendant thus met its initial burden of establishing that this action, commenced inOctober 2008, was time-barred (see Gravel v Cicola, 297 AD2d 620, 620-621 [2002]).The burden then shifted to plaintiffs to raise a triable issue of fact whether the statute oflimitations was tolled by the continuous representation doctrine (see id. at 621). "For thecontinuous representation doctrine to apply to an action sounding in legal malpractice. . . , there must be clear indicia of an ongoing, continuous, developing, anddependent relationship between the client and the attorney[,] which often includes an attempt bythe attorney to rectify an alleged act of malpractice" (Luk Lamellen U. Kupplungbau [*2]GmbH v Lerner, 166 AD2d 505, 506-507 [1990]; seeAaron v Roemer, Wallens & Mineaux, 272 AD2d 752, 754 [2000], lv dismissed 96NY2d 730 [2001]). That doctrine "tolls the [s]tatute of [l]imitations only where the continuingrepresentation pertains specifically to the matter in which the attorney committed the allegedmalpractice" (Shumsky, 96 NY2d at 168; see Amendola v Kendzia, 17 AD3d 1105, 1108-1109 [2005]).Thus "if there is merely a 'continuing general relationship with [an attorney] . . .involving only routine contact for miscellaneous legal representation . . . unrelatedto the matter upon which the allegations of malpractice are predicated' . . . , the tollwill not be found" (Chicago Tit. Ins.Co. v Mazula, 47 AD3d 999, 1000 [2008], quoting Shumsky, 96 NY2d at 168).
In opposition to the motion, plaintiffs established that defendant represented them in the latesummer and fall of 2006 in connection with the EPA investigation. We agree with plaintiffs thatthere is a triable issue of fact whether that representation was related to defendant's allegedmalpractice in failing to conduct a thorough environmental investigation of the property prior tothe closing (see generally Shumsky, 96 NY2d at 168). Plaintiffs also raised a triableissue of fact whether that representation constituted an attempt to rectify the alleged malpractice(see Gravel, 297 AD2d at 621). Present—Smith, J.P., Centra, Fahey and Pine, JJ.