| Rakusin v Miano |
| 2011 NY Slip Op 04225 [84 AD3d 1051] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Barbara Rakusin, Appellant, v Joseph Miano et al.,Respondents. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Marian C. Rice and ScottKossove of counsel), for respondents.
In an action to recover damages for legal malpractice, the plaintiff appeals from (1) an orderof the Supreme Court, Nassau County (Murphy, J.), dated September 8, 2009, which granted thedefendants' motion to dismiss the complaint pursuant to CPLR 3211 (a) (5), and (2) a judgmentof the same court dated October 9, 2009, which, upon the order dated September 8, 2009, is infavor of the defendant and against the plaintiff dismissing the complaint.
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 the 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]).
The Supreme Court properly granted the defendants' motion pursuant to CPLR 3211 (a) (5)to dismiss the complaint. An action to recover damages arising from legal malpractice must becommenced within three years after accrual (see CPLR 214 [6]; 203 [a]). On a motion todismiss a complaint pursuant to CPLR 3211 (a) (5) on statute of limitations grounds, the movingdefendant must establish, prima facie, that the time in which to commence the action has expired.The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute oflimitations is tolled or is otherwise inapplicable (see Romanelli v Disilvio, 76 AD3d 553, 554 [2010]; 6D Farm Corp. v Carr, 63 AD3d903, 906 [2009]; Texeria v BABNuclear Radiology, P.C., 43 AD3d 403, 405 [2007]; Savarese v Shatz, 273AD2d 219, 220 [2000]). Here, the defendants made a prima facie showing that the subject actionwas commenced more than three years after the alleged malpractice was committed (seeMcCoy v Feinman, 99 NY2d 295, 301 [2002]). Contrary to the plaintiff's contention onappeal, she failed to raise a triable issue of fact as to whether the continuous representation [*2]doctrine applied (id. at 301; see Shumsky vEisenstein, 96 NY2d 164, 166 [2001]). Florio, J.P., Balkin, Belen and Miller, JJ., concur.