| Krichmar v Scher |
| 2011 NY Slip Op 02630 [82 AD3d 1164] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Galina Krichmar, Appellant, v Anthony Z. Scher et al.,Respondents. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (William T. McCaffery ofcounsel), for respondents.
In an action to recover damages for legal malpractice, the plaintiff appeals from (1) an orderof the Supreme Court, Queens County (Kelly, J.), entered December 30, 2009, which granted thedefendants' motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred, and(2) a judgment of the same court entered January 28, 2010, which, upon the order, is in favor ofthe defendants and against her dismissing the complaint. The notice of appeal from the order isdeemed also to be a notice of appeal from the judgment (see CPLR 5501 [c]).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
To dismiss an action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute oflimitations, a defendant must satisfy the threshold burden of demonstrating, prima facie, that thetime within which to sue has expired, and once that showing has been made, the burden shifts tothe opponent to establish that the statute of limitations has been tolled or that he or she actuallycommenced the action within the applicable limitations period (see Hebrew Inst. for Deaf &Exceptional Children v Kahana, 57 AD3d 734 [2008]; Savarese v Shatz, 273 AD2d219, 220 [2000]). Here, the defendants sustained their initial burden on the motion bydemonstrating that the applicable limitations period had expired with respect to all of the allegedacts of legal malpractice (see CPLR 214 [6]). In [*2]response, the plaintiff failed to present evidence establishing eitherthat she commenced the action within the applicable three-year limitations period, or that thecontinuous representation toll applied in this case, since all of the documentary evidence in therecord supports the conclusion that the legal representation had ended more than three yearsbefore this action was commenced, and there was no mutual understanding of a need for ongoinglegal representation in the underlying matter (see Zorn v Gilbert, 8 NY3d 933, 934[2007]; McCoy v Feinman, 99 NY2d 295, 306 [2002]; Hasty Hills Stables, Inc. vDorfman, Lynch, Knoebel & Conway, LLP, 52 AD3d 566, 567 [2008]; Melendez vBernstein, 29 AD3d 872, 873 [2006]; Guerra Press, Inc. v Campbell & Parlato, LLP,17 AD3d 1031, 1032 [2005]).
The plaintiff's remaining contentions are without merit. Mastro, J.P., Skelos, Balkin andRoman, JJ., concur.