| Tsafatinos v Lee David Auerbach, P.C. |
| 2011 NY Slip Op 00503 [80 AD3d 749] |
| January 25, 2011 |
| Appellate Division, Second Department |
| Stamatiki Tsafatinos et al., Appellants, v Lee DavidAuerbach, P.C., et al., Respondents. |
—[*1] Housman & Associates, P.C., Tarrytown, N.Y. (Brian J. Divney of counsel), for respondentsEugenia M. Vecchio & Associates and Eugenia M. Vecchio.
In an action, inter alia, to recover damages for legal malpractice, etc., the plaintiffs appealfrom an order of the Supreme Court, Westchester County (Nicolai, J.), entered December 8,2009, which granted the motion of the defendants Lee David Auerbach, P.C., and Lee DavidAuerbach, and the separate motion of the defendants Eugenia M. Vecchio & Associates andEugenia M. Vecchio, pursuant to CPLR 3211 (a) to dismiss the complaint.
Ordered that the order is affirmed, with costs to the respondents Eugenia M. Vecchio &Associates and Eugenia M. Vecchio.
The Supreme Court properly granted the defendants' separate motions pursuant to CPLR3211 (a) to dismiss the complaint. The statute of limitations applicable to actions sounding inlegal malpractice is three years "regardless of whether the underlying theory is based in contractor tort" (CPLR 214 [6]). The plaintiffs' causes of action sounding in breach of contract andbreach of fiduciary duty are based on the same facts underlying their legal malpractice cause ofaction and do not allege distinct damages. Accordingly, they are duplicative of the legalmalpractice cause of action (see SymbolTech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 199 [2009]; Town of N. Hempstead v Winston &Strawn, LLP, 28 AD3d 746, 749 [2006]; Mecca v Shang, 258 AD2d 569[1999]), and likewise subject to the three-year limitations period (see Harris v Kahn, Hoffman, Nonenmacher& Hochman, LLP, 59 AD3d 390 [2009]; Melendez v Bernstein, 29 AD3d 872 [2006]).
The limitations period begins to run from the time of the alleged malpractice, not from thetime of discovery (see Shumsky v Eisenstein, 96 NY2d 164, 166 [2001]; 730 J & J, LLC v Polizzotto & Polizzotto,Esqs., 69 AD3d 704 [2010]). Here, the plaintiffs' claims against Eugenia M. Vecchioand her law firm could have accrued no later than December 23, 2004, and their claims againstLee David Auerbach and his law firm could have accrued no later than April 27, 2005, therespective last dates on which the defendants represented the plaintiffs. Contrary to the plaintiffs'contention, the statute of limitations was not tolled beyond these dates by the continuousrepresentation doctrine, or otherwise (see McCoy v Feinman, 99 NY2d 295, 306 [2002];Shumsky v Eisenstein, 96 NY2d at 168; see also McCarthy v Volkswagen ofAm., 55 NY2d 543, 548 [1982]). [*2]Accordingly, thisaction, commenced on or about August 15, 2008, was untimely.
In light of our determination, the defendants' remaining contentions have been renderedacademic.
There is no basis to grant the plaintiffs' request to impose sanctions upon the defendantspursuant to 22 NYCRR 130-1.1. Covello, J.P., Angiolillo, Dickerson and Belen, JJ., concur.