| Minsky v Haber |
| 2010 NY Slip Op 04754 [74 AD3d 763] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Andrea Minsky, Appellant, v Eugene Haber et al.,Respondents, et al., Defendants. |
—[*1] Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Gary Petropoulos and Rebecca J.Waldren of counsel), for respondents.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals froman order of the Supreme Court, Nassau County (McCarty III, J.), entered April 22, 2009, whichgranted the motion of the defendants Eugene Haber, Edward Cobert, and Amy Cobert,individually and doing business as Cobert, Haber & Haber, pursuant to CPLR 3211 (a) (1), (3),(5) and (7) to dismiss the complaint insofar as asserted against them, and denied her crossmotion for summary judgment on the second cause of action to recover certain alleged escrowfunds.
Ordered that the order is modified, on the law, by deleting the provision thereof granting themotion of the defendants Eugene Haber, Edward Cobert, and Amy Cobert, individually anddoing business as Cobert, Haber & Haber, pursuant to CPLR 3211 (a) (1), (3), (5) and (7) todismiss the complaint insofar as asserted against them and substituting therefor a provisiondenying the motion; as so modified, the order is affirmed, without costs or disbursements.
Contrary to the determination of the Supreme Court, the motion of the defendants EugeneHaber, Edward Cobert, and Amy Cobert, individually and doing business as Cobert, Haber &Haber (hereinafter collectively the Haber defendants), to dismiss the complaint insofar asasserted against them pursuant to CPLR 3211 should have been denied. Affording the complainta liberal construction, and according its factual allegations every possible favorable inference(see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker,LLP, 38 AD3d 34, 38 [2006]), we find that the complaint sufficiently stated distinctcauses of action to recover damages for legal malpractice, breach of contract, breach of fiduciaryduty, and fraud. With regard to the privity requirement of the legal malpractice cause of action,the plaintiff satisfactorily alleged that she was assigned a claim of right by her father sounding inlegal malpractice against the Haber defendants, that the Haber defendants also were retained torepresent her personal interests in addition to her father's interests, that she was also a third-partybeneficiary of the representation of her father by the Haber defendants, and was injured by theiralleged misconduct (see generallyNelson v Kalathara, 48 AD3d 528 [2008]; Fredriksen v Fredriksen, 30 AD3d 370 [2006]). The other causesof action are sufficiently different from the legal malpractice claim to survive that branch of theHaber defendants' motion which was pursuant to CPLR 3211 (a) (7).[*2]
Furthermore, dismissal of the complaint as time-barredpursuant to CPLR 3211 (a) (5) was error, since the plaintiff alleged facts supporting theapplication of the continuous representation doctrine to toll the statute of limitations for legalmalpractice (see CPLR 214 [6]; Griffin v Brewington, 300 AD2d 283 [2002];Mancino v Levin, 268 AD2d 507 [2000]; Kuritzky v Sirlin & Sirlin, 231 AD2d607 [1996]), and the remaining causes of action also were timely interposed under thecircumstances.
The Haber defendants' submission of documentary evidence did not conclusively establish adefense to the claims asserted by the plaintiff (see CPLR 3211 [a] [1]; see generallyHeld v Kaufman, 91 NY2d 425, 430-431 [1998]; Leon v Martinez, 84 NY2d 83, 88[1994]; Peter F. Gaito Architecture,LLC v Simone Dev. Corp., 46 AD3d 530 [2007]), but merely revealed the existence offactual questions with regard to the propriety of the Haber defendants' conduct.
The plaintiff, however, failed to establish her prima facie entitlement to judgment as a matterof law on the cause of action to recover certain alleged escrow funds. Accordingly, her crossmotion was properly denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]), without reference to the papers submitted in opposition by the Haber defendants.
The parties' remaining contentions either are without merit or need not be reached in light ofthe foregoing. Mastro, J.P., Miller, Leventhal and Belen, JJ., concur.