| Tsafatinos v Wilson Elser Moskowitz Edelman & Dicker,LLP |
| 2010 NY Slip Op 06085 [75 AD3d 546] |
| July 13, 2010 |
| Appellate Division, Second Department |
| Matina Tsafatinos et al., Appellants, v Wilson ElserMoskowitz Edelman & Dicker, LLP, et al., Respondents. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (John M. Flannery andJames B. Cooney of counsel), respondent pro se and for respondents Charles M. Feuer and MarieRusso.
In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal froman order of the Supreme Court, Westchester County (Nicolai J.), dated June 19, 2009, whichgranted that branch of the defendants' motion which was to dismiss the complaint pursuant toCPLR 3211 (a) (5) as time-barred.
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted that branch of the defendants' motion which was todismiss the complaint pursuant to CPLR 3211 (a) (5) as time-barred. "To dismiss a cause ofaction pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the Statute ofLimitations, a defendant bears the initial burden of establishing prima facie that the time inwhich to sue has expired" (Savarese v Shatz, 273 AD2d 219, 220 [2000]; see Morris v Gianelli, 71 AD3d965, 967 [2010]). Here, the defendants demonstrated that the plaintiffs' cause of action torecover damages for legal malpractice accrued no later than July 2005, more than three yearsbefore the commencement of the instant action in August 2008 (see CPLR 214 [6];McCoy v Feinman, 99 NY2d 295, 301 [2002]; Nickel v Goldsmith & Tortora, Attorneys at Law, P.C., 57 AD3d496 [2008]). Thereafter, "the burden shifted to the plaintiffs to aver evidentiary factsestablishing that the case falls within an exception to the Statute of Limitations" (Savarese vShatz, 273 AD2d at 220 [internal quotation marks omitted]). Contrary to the plaintiffs'contention, they failed to establish that the statute of limitations was tolled by the continuousrepresentation doctrine (see McCoy v Feinman, 99 NY2d at 306; cf. Shumsky vEisenstein, 96 NY2d 164, 168 [2001]).
Furthermore, to the extent that the complaint may be construed to assert causes of actionalleging breach of contract, fraud, or breach of fiduciary duty, the Supreme Court properly, ineffect, dismissed those causes of action as duplicative of the legal malpractice cause of action(see Turner v Irving Finkelstein &Meirowitz, LLP, 61 AD3d 849, 850 [2009]; Amodeo v Kolodny, P.C., 35 AD3d 773, 774 [2006]). Santucci,J.P., Angiolillo, Dickerson and Austin, JJ., concur.