| Meralla v Goldenberg |
| 2011 NY Slip Op 08656 [89 AD3d 645] |
| November 29, 2011 |
| Appellate Division, First Department |
| Efren Meralla, Respondent, v Stephen M. Goldenberg,Respondent, and Philip L. Weinstein et al., Appellants. Stephen M. Goldenberg, Third-PartyPlaintiff-Respondent, v Philip L. Weinstein et al., Third-PartyDefendants-Appellants. |
—[*1] Friedman & Moses, LLP, Garden City (Lisa M. Comeau of counsel), for Efren Meralla,respondent. Stephen M. Goldenberg, Hewlett, respondent pro se.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered February 24,2011, which denied the motion of defendants/third-party defendants (Legal Aid defendants) todismiss the amended and third-party complaints as against them, unanimously reversed, on thelaw, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff seeks to recover for successive acts of legal malpractice allegedly committed bydefendant Goldenberg, who represented him at a criminal trial at which he was convicted ofmurder in the second degree, and by the Legal Aid defendants, who delayed in successfullyprosecuting the appeal of his conviction (see People v Meralla, 228 AD2d 160 [1996],lv denied 88 NY2d 989 [1996] [reversing plaintiff's conviction on the grounds ofineffective assistance of counsel]). Goldenberg seeks contribution from the Legal Aid defendantsfor the portion of plaintiff's imprisonment allegedly attributable to the delay in appealing thecriminal conviction.
Plaintiff's claim against the Legal Aid defendants, brought more than 10 years after theysecured the reversal of his criminal conviction, is time-barred. Plaintiff, who admitted beingaware of the Legal Aid defendants' alleged delay in prosecuting the appeal as early as 1998, madeno mistake in the identity of these defendants and cannot now rely on the relation-back [*2]doctrine to assert a claim against them (see Buran v Coupal,87 NY2d 173, 181 [1995]; Goldberg vBoatmax://, Inc., 41 AD3d 255 [2007]).
Plaintiff also failed to state a cause of action against the Legal Aid defendants. It is wellestablished that "[i]n order to sustain a claim for legal malpractice, a plaintiff must establish. . . that the defendant attorney failed to exercise the ordinary reasonable skill andknowledge commonly possessed by a member of the legal profession" (AmBase Corp. v Davis Polk &Wardwell, 8 NY3d 428, 434 [2007]). Here, the bare legal assertion that the Legal Aiddefendants were negligent based on the delay in prosecuting the appeal of plaintiff's conviction isinsufficient to state a cause of action for legal malpractice. The delay was clearly attributable tothe preparation of the Legal Aid defendants' motion to vacate the judgment of conviction, whichwas complicated by, inter alia, the fact that two separate murder trials were at issue.Concur—Saxe, J.P., Friedman, Renwick, DeGrasse, Freedman, JJ.