| New Kayak Pool Corp. v Kavinoky Cook LLP |
| 2010 NY Slip Op 05176 [74 AD3d 1852] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| The New Kayak Pool Corporation, Now Known as Kayak PoolCorporation, et al., Respondents, v Kavinoky Cook LLP, Appellant, and Hodgson Russ, LLP,Respondent. |
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Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered April7, 2009 in a legal malpractice action. The order denied the motion of defendant Kavinoky CookLLP for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this legal malpractice action seeking damages arisingfrom defendants' alleged malpractice in failing to ascertain the existence of insurance coveragefor the parties sued by plaintiffs in the underlying trademark infringement action. The sameattorney represented plaintiffs throughout the course of that action. That attorney beganrepresenting plaintiffs in 1999 when he was a partner in defendant Kavinoky Cook LLP(Kavinoky). When he subsequently joined defendant Hodgson Russ, LLP (Hodgson), plaintiffsexecuted a consent to change attorney form in June 2003, thereby substituting Hodgson forKavinoky as plaintiffs' attorney of record in the underlying action. That action settled inFebruary 2004 and the instant action was commenced in January 2007.
Supreme Court properly denied the motion of Kavinoky seeking summary judgmentdismissing the amended complaint and cross claims against it. Kavinoky contends that the actionagainst it is time-barred because it was commenced more than three years after the attorney inquestion left Kavinoky and the consent to change attorney form was executed by plaintiffs(see CPLR 214 [6]). We reject that contention inasmuch as the statute of limitations wastolled by the doctrine of continuous representation during the time that the same attorneyrepresented plaintiffs in the underlying action (see [*2]Waggoner v Caruso, 68 AD3d1, 7 [2009], affd 14 NY3d 874 [2010]; HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP, 63 AD3d534, 535 [2009]). We further conclude that Kavinoky failed to meet its burden ofestablishing as a matter of law that any alleged negligence on its part was not a proximate causeof plaintiffs' damages (cf. Zulawski v Taylor [appeal No. 2], 63 AD3d 1552, 1553-1554[2009]). Present—Scudder, P.J., Martoche, Sconiers, Green and Gorski, JJ.