| Fleyshman v Suckle & Schlesinger, PLLC |
| 2012 NY Slip Op 00176 [91 AD3d 591] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| Inna Fleyshman, Respondent, v Suckle & Schlesinger,PLLC, et al., Appellants. |
—[*1] William Pager, Brooklyn, N.Y., for respondent.
In an action to recover damages for legal malpractice and violation of Judiciary Law §487, the defendants appeal, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (Rothenberg, J.), dated February 3, 2011, as denied those branches of theirmotion which were pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the defendants' motion which were pursuant to CPLR 3211 (a) (5) and (7) to dismissthe complaint are granted.
The defendants Howard Suckle, Glenn Schlesinger, and John Leifert, and the defendant lawfirms, Suckle & Schlesinger, PLLC, and Suckle Schlesinger & Leifert, PLLC, represented theplaintiff's mother, individually and as mother and natural guardian of the plaintiff herein, in apersonal injury action against the City of New York arising from injuries allegedly sustained bythe plaintiff on December 20, 2002 (hereinafter the underlying action). In August 2006, theplaintiff discharged the defendants by a "Consent to Change Attorney" form. Subsequently, inMay 2010, the Supreme Court granted the City's motion for summary judgment dismissing thecomplaint in the underlying action and any cross claims on the ground that the City was not aproper party to the action. The plaintiff commenced this action against the defendants in May2010, alleging legal malpractice and a violation of Judiciary Law § 487. The defendantsmoved, inter alia, pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint, and theSupreme Court denied those branches of the motion.
The Supreme Court erred in denying that branch of the defendants' motion which waspursuant to CPLR 3211 (a) (5) to dismiss the first cause of action, alleging legal malpractice, astime-barred. The defendants sustained their initial burden by demonstrating, prima facie, that thealleged legal malpractice occurred more than three years before this action was commenced inMay 2010 (see CPLR 214 [6]; Rupolo v Fish, 87 AD3d 684, 685 [2011]; Krichmar v Scher, 82 AD3d 1164,1165 [2011]). In response, the plaintiff failed to raise a question of fact as to whether the statuteof limitations was [*2]tolled by the doctrine of continuousrepresentation. All of the documentary evidence demonstrated that the relationship necessary toinvoke the continuous representation doctrine terminated in August 2006, and the plaintiff'ssubmissions did not indicate that her trust and confidence in the defendants continued, or wasrestored, after that date (see Rupolo vFish, 87 AD3d 684 [2011]; Krichmar v Scher, 82 AD3d at 1165; Marro v Handwerker, Marchelos &Gayner, 1 AD3d 488 [2003]; Piliero v Adler & Stavros, 282 AD2d 511, 512[2001]; Aaron v Roemer, Wallens & Mineaux, 272 AD2d 752, 754-755 [2000]).
Moreover, the Supreme Court should have granted that branch of the defendants' motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the second cause of action, which alleged aviolation of Judiciary Law § 487. Even as amplified by the plaintiff's affidavit, andaccording the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84NY2d 83 [1994]), the complaint failed to allege that the defendants acted "with intent to deceivethe court or any party" (Judiciary Law § 487 [1]; see Jaroslawicz v Cohen, 12 AD3d 160, 160-161 [2004]). Further,the plaintiff's allegation that the defendants "willfully delayed [her] recovery with a view to theirown ends and benefit" is a bare legal conclusion, "which is not entitled to the presumption oftruth normally afforded to the allegations of a complaint" (Rozen v Russ & Russ, P.C., 76 AD3d 965, 969 [2010]; seeJudiciary Law § 487 [2]).
Accordingly, the Supreme Court erred in denying those branches of the defendants' motionwhich were pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint.
The defendants' remaining contentions have been rendered academic in light of ourdetermination. Florio, J.P., Belen, Roman and Sgroi, JJ., concur.