| Rupolo v Fish |
| 2011 NY Slip Op 06343 [87 AD3d 684] |
| August 23, 2011 |
| Appellate Division, Second Department |
| Joseph Rupolo, Jr., et al., Respondents, v Richard E. Fishet al., Appellants. |
—[*1] Purcell & Ingrao, P.C., Mineola, N.Y. (Corey J. Pugliese of counsel), forrespondents.
In an action, inter alia, to recover damages for legal malpractice and fraud, the defendantsappeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County(Cohalan, J.), dated July 6, 2010, as denied those branches of their motion which were pursuantto CPLR 3211 (a) (5) and (7) to dismiss the second and seventh causes of action.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendants' motion which was pursuant to CPLR 3211 (a) (5) to dismiss the secondcause of action, and substituting therefor a provision granting that branch of the motion; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements.
In the second cause of action the plaintiffs allege that the defendants committed legalmalpractice with respect to the drafting of an easement agreement benefitting certain realproperty located in Florida and owned by the plaintiffs. The Supreme Court erred in denying thatbranch of the defendants' motion which was pursuant to CPLR 3211 (a) (5) to dismiss this causeof action as time-barred. The defendants demonstrated that the alleged legal malpractice occurredmore than three years before the instant action was commenced on October 31, 2008 (seeCPLR 214 [6]; Kennedy v H. BruceFischer, Esq., P.C., 78 AD3d 1016, 1017 [2010]). Contrary to the plaintiffs' contention,they failed to raise a question of fact as to whether the statute of limitations was tolled by thedoctrine of continuous representation. Rather, the evidence demonstrated that the relationshipnecessary to invoke the continuous representation doctrine terminated during the summer of2005 (cf. Marlett v Hennessy, 32AD3d 1293, 1294 [2006]; Piliero v Adler & Stavros, 282 AD2d 511 [2001]), and thefact that the defendants received a telephone call from the plaintiffs' new counsel in November2005, during which the defendants provided requested information to new counsel, did not tollthe running of the statute of limitations until that date (see Tal-Spons Corp. v Nurnberg,213 AD2d 395, 396 [1995]). Accordingly, that branch of the defendants' motion which was todismiss the legal malpractice cause of action should have been granted (see Williams v Lindenberg, 24 AD3d434, 434-435 [2005]).
However, the Supreme Court properly denied that branch of the defendants' motion [*2]pursuant to CPLR 3211 (a) (7) which was to dismiss the cause ofaction alleging fraud as duplicative of the legal malpractice cause of action. As alleged in thecomplaint, the fraud cause of action was based upon tortious conduct independent of the allegedmalpractice, i.e., an alleged misrepresentation as to the eligibility of the defendant Richard E.Fish to practice law in the State of Florida, and the plaintiffs alleged that damages flowed fromthis distinct conduct (cf. Weiss v Manfredi, 83 NY2d 974, 977 [1994] ["attorney's failureto disclose malpractice does not give rise to a fraud claim separate from the customarymalpractice action"]; Iannucci v Kucker& Bruh, LLP, 42 AD3d 436 [2007]). Skelos, J.P., Balkin, Leventhal and Lott, JJ.,concur.