| Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C. |
| 2011 NY Slip Op 00193 [80 AD3d 573] |
| January 11, 2011 |
| Appellate Division, Second Department |
| Leon Petroleum, LLC, et al., Respondents-Appellants, v Carl S.Levine & Associates, P.C., Also Known as CSL Holdings, Inc., et al.,Appellants-Respondents. |
—[*1] Somer & Heller, LLP, Commack, N.Y. (Michael C. Marcus of counsel), forrespondents-appellants.
In an action, inter alia, to recover damages for legal malpractice, the defendants appeal, as limitedby their brief, from so much of an order of the Supreme Court, Suffolk County (Costello, J.), datedSeptember 10, 2009, as denied that branch of their motion which was for summary judgment dismissingthe fourth cause of action alleging legal malpractice, and the plaintiffs cross-appeal, as limited by theirbrief, from so much of the same order as granted those branches of the defendants' motion which werefor summary judgment dismissing the fifth and sixth causes of action alleging breach of contract andbreach of fiduciary duty, respectively.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs ordisbursements.
"An action to recover damages arising from an attorney's malpractice must be commenced withinthree years from accrual" (McCoy v Feinman, 99 NY2d 295, 301 [2002]; see CPLR214 [6]). The defendants established their prima facie entitlement to judgment as a matter of law basedon the defense of the statute of limitations by showing that this action was commenced more than threeyears after the legal malpractice cause of action accrued (see Hasty Hills Stables, Inc. v Dorfman, Lynch, Knoebel & Conway, LLP,52 AD3d 566, 567 [2008]; Rachlin vLaRossa, Mitchell & Ross, 8 AD3d 461, 462 [2004]). In opposition, however, the plaintiffsraised a triable issue of fact as to whether the statute of limitations was tolled by the doctrine ofcontinuous representation (see Town ofWallkill v Rosenstein, 40 AD3d 972 [2007]; Tropp v Lumer, 23 AD3d 550, 551 [2005]; N&S Supply vSimmons, 305 AD2d 648 [2003]). Accordingly, the Supreme Court properly denied that branchof the defendants' motion which was for summary judgment dismissing the fourth cause of actionalleging legal malpractice.
The Supreme Court properly granted those branches of the defendants' motion which were forsummary judgment dismissing the fifth and sixth causes of action alleging breach of contract and breachof fiduciary duty respectively, since these causes of action were merely duplicative of the plaintiff'sfourth [*2]cause of action alleging legal malpractice (see Kvetnaya v Tylo, 49 AD3d 608,609 [2008]; Town of Wallkill vRosenstein, 40 AD3d 972, 974 [2007]). Covello, J.P., Florio, Eng and Chambers, JJ.,concur.