| Kennedy v H. Bruce Fischer, Esq., P.C. |
| 2010 NY Slip Op 08709 [78 AD3d 1016] |
| November 23, 2010 |
| Appellate Division, Second Department |
| Michael Kennedy, Appellant, v H. Bruce Fischer, Esq.,P.C., et al., Respondents. |
—[*1] Kaufman Borgeest & Ryan LLP, New York, N.Y. (Deborah M. Zawadzki and Jonathan B.Bruno of counsel), for respondents.
In an action to recover damages for legal malpractice, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Kramer, J.), dated July 24, 2009, which, in effect, grantedthose branches of the defendants' motion which were to dismiss the complaint pursuant to CPLR3211 (a) (5) and (7).
Ordered that the order is modified, on the law, by deleting the provision thereof, in effect,granting that branch of the defendants' motion which was to dismiss the complaint pursuant toCPLR 3211 (a) (5) and substituting therefor a provision denying that branch of the motion; as somodified, the order is affirmed, with costs to the defendants.
The defendants H. Bruce Fischer, Esq., P.C., and H. Bruce Fischer (hereinafter togetherFischer) represented the plaintiff in a personal injury action (hereinafter the personal injuryaction) arising from injuries allegedly sustained by the plaintiff on September 21, 2001. InAugust 2002 the plaintiff obtained a default judgment against one of the defendants in thepersonal injury action (hereinafter the personal injury defendant). In August 2004, following aninquest on the issue of damages, the Supreme Court entered a judgment in favor of the plaintiffand against the personal injury defendant in the principal sum of $1,400,000 (hereinafter themoney judgment).
In May 2005 the plaintiff retained the law firm of Marschhausen & Fitzpatrick, P.C.(hereinafter M&F), to collect on the money judgment. Fischer subsequently signed a consent tochange attorney form dated March 21, 2006, pursuant to which M&F replaced Fischer as theplaintiff's counsel in the personal injury action.
In November 2006 the personal injury defendant moved, inter alia, to vacate the moneyjudgment entered against him on the ground that he had not been properly served with process inthe personal injury action. In an order dated June 6, 2007, the Supreme Court, among otherthings, granted the motion, vacated the money judgment, and dismissed the personal injury actioninsofar as asserted against the personal injury defendant, with prejudice.[*2]
On January 9, 2009, the plaintiff commenced this actionagainst Fischer to recover damages for legal malpractice, alleging that Fischer had been negligentin failing to properly effectuate the service of process upon the personal injury defendant prior tothe expiration of the statute of limitations in the personal injury action. Fischer moved to dismissthe complaint, inter alia, pursuant to CPLR 3211 (a) (5) on the ground that it was time-barred bythe applicable three-year statute of limitations, and pursuant to CPLR 3211 (a) (7) for failure tostate a cause of action. The Supreme Court granted those branches of the motion, and we modify.
The Supreme Court improperly granted that branch of Fischer's motion which was pursuantto CPLR 3211 (a) (5) to dismiss the complaint as time-barred. To dismiss a cause of actionpursuant to CPLR 3211 (a) (5) on the ground that it is barred by the applicable statute oflimitations, a defendant bears the initial burden of establishing, prima facie, that the time inwhich to sue has expired (see Tsafatinosv Wilson Elser Moskowitz Edelman & Dicker, LLP, 75 AD3d 546 [2010]; Morris v Gianelli, 71 AD3d 965,967 [2010]; Savarese v Shatz, 273 AD2d 219, 220 [2000]). Here, Fischer satisfied thisinitial burden by demonstrating that the alleged legal malpractice occurred more than three yearsbefore the instant action was commenced in January 2009 (see CPLR 214 [6]). "Theburden thus shifted to the [plaintiff] to aver evidentiary facts establishing that [his] cause ofaction falls within an exception to the statute of limitations, or to raise an issue of fact as towhether such an exception applies" (Gravel v Cicola, 297 AD2d 620, 621 [2002]; see Symbol Tech., Inc. v Deloitte &Touche, LLP, 69 AD3d 191, 195 [2009]; Lessoff v 26 Ct. St. Assoc., LLC, 58 AD3d 610, 611 [2009]).Contrary to the Supreme Court's determination, the evidentiary facts averred by the plaintiff weresufficient to raise an issue of fact as to whether the statute of limitations was tolled by thedoctrine of continuous representation because Fischer continued to perform services for theplaintiff in the personal injury action until approximately March 2006 (see Gravel vCicola, 297 AD2d at 621; cf.Williams v Lindenberg, 24 AD3d 434, 434-435 [2005]; see generally McCoy vFeinman, 99 NY2d 295, Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d505, 506-507 [1990]).
However, the Supreme Court properly granted that branch of Fischer's motion which was todismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. "Amotion to dismiss pursuant to CPLR 3211 (a) (7) will fail if, taking all facts alleged as true andaccording them every possible inference favorable to the plaintiff, 'the complaint states in somerecognizable form any cause of action known to our law' " (Sheroff v Dreyfus Corp., 50 AD3d 877, 877-878 [2008], quotingShaya B. Pac., LLC v Wilson, Elser,Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]). "[A]ffidavits may beused freely to preserve inartfully pleaded, but potentially meritorious, claims" (Rovello vOrofino Realty Co., 40 NY2d 633, 635 [1976]; see Sheroff v Dreyfus Corp., 50AD3d at 878).
In an action to recover damages for legal malpractice, "a plaintiff must demonstrate that theattorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by amember of the legal profession and that the attorney's breach of this duty proximately caused[the] plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438,442 [2007] [internal quotation marks omitted]; see Kuzmin v Nevsky, 74 AD3d 896, 898 [2010]). To establishcausation, "a plaintiff must show that he or she would have prevailed in the underlying action orwould not have incurred any damages, but for the lawyer's negligence" (Rudolf v Shayne,Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Kuzmin v Nevsky, 74 AD3d at898; Rosenstrauss v Jacobs &Jacobs, 56 AD3d 453 [2008]; Wray v Mallilo & Grossman, 54 AD3d 328, 329 [2008]; Carrasco v Pena & Kahn, 48 AD3d395, 396 [2008]).
Here, even as amplified by the plaintiff's affidavit, and according every possible inferencefavorable to the plaintiff, the complaint failed to allege any facts tending to show that, but forFischer's alleged negligence in failing to serve process upon the personal injury defendant in thepersonal injury action, the plaintiff would have prevailed in that action insofar as asserted againstthe personal injury defendant (see Kuzmin v Nevsky, 74 AD3d at 898; Tortura v Sullivan Papain Block McGrath& Cannavo, P.C., 21 AD3d 1082, 1083 [2005]; Rau v Borenkoff, 262 AD2d388, 389 [1999]; Weiner v Hershman & Leicher, 248 AD2d 193 [1998]). The plaintiff'sremaining contentions regarding dismissal pursuant to CPLR 3211 (a) (7) are without merit.Accordingly, the Supreme Court properly granted that branch of Fischer's motion which was todismiss the complaint pursuant to CPLR [*3]3211 (a) (7). Fisher,J.P., Santucci, Eng and Sgroi, JJ., concur.