| Walter v Castrataro |
| 2012 NY Slip Op 02676 [94 AD3d 872] |
| April 10, 2012 |
| Appellate Division, Second Department |
| Margarita T. Walter, Appellant, v Barbara Castrataro,Respondent. |
—[*1] McDonough Law, LLP, New Rochelle, N.Y. (Eli S. Cohn of counsel), forrespondent.
In an action to recover damages for legal malpractice and breach of contract, the plaintiffappeals, as limited by her brief, from (1) so much of an order of the Supreme Court, WestchesterCounty (Giacomo, J.), dated March 8, 2010, as granted that branch of the defendant's motionwhich was for summary judgment dismissing the complaint as time-barred, and (2) so much ofan order of the same court dated December 8, 2010, as denied that branch of her motion whichwas denominated as one for leave to renew and reargue her opposition to that branch of thedefendant's motion which was for summary judgment dismissing the complaint as time-barredbut, which was, in actuality, one for leave to reargue her opposition to that branch of thedefendant's motion, and denied those branches of her motion which were for poor person reliefand recusal.
Ordered that the order dated March 8, 2010, is affirmed insofar as appealed from; and it isfurther,
Ordered that the appeal from so much of the order dated December 8, 2010, as denied thatbranch of the plaintiff's motion which was denominated as one for leave to renew and reargue heropposition to that branch of the defendant's motion which was for summary judgment dismissingthe complaint as time-barred but which was, in actuality, one for leave to reargue her oppositionto that branch of the defendant's motion, and denied that branch of her motion which was forpoor person relief, are dismissed; and it is further,
Ordered that the order dated December 8, 2010, is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the defendant.
On April 16, 2003, the plaintiff signed a retainer agreement, wherein the defendant agreed torepresent her in a matrimonial action. By letter dated July 1, 2003, the plaintiff terminated thedefendant's representation. On June 11, 2009, the plaintiff commenced this action, alleging in[*2]her complaint that the defendant "negligently failed torepresent the Plaintiff and breached her duties" and "[a]s a result of the Defendant's breach ofcontract the Plaintiff has suffered substantial damages." The defendant moved, inter alia, forsummary judgment dismissing the complaint on the ground that the complaint sounded in legalmalpractice and, thus, was barred by the applicable three-year statute of limitations (seeCPLR 214 [6]). In her opposing affidavit, the plaintiff stated that she "may haveinadvertently misused language on the Summons and Complaint. However, the object of the saidapplication served upon Defendant asserts breach of contract verbatim and notably,Plaintiff never uses the term Legal malpractice" (emphasis in original). In her affidavit, theplaintiff alleged numerous "breaches" by the defendant in connection with the underlyingmatrimonial action, including a failure to file an application for pendente lite support, failure tomove to vacate a certain forensic report, and failure to "modify" a certain stipulation. TheSupreme Court, among other things, granted that branch of the defendant's motion which was forsummary judgment dismissing the complaint as time-barred.
The complaint is "nothing more than a rephrasing of the claim of malpractice in the languageof breach of contract" (Mitschele vSchultz, 36 AD3d 249, 252 [2006]). The defendant satisfied her initial burden bydemonstrating, prima facie, that the complaint sounded in legal malpractice and that thethree-year statute of limitations began to run no later than July 1, 2003 (see Sladowski v Casolaro, 84 AD3d1056, 1057 [2011]). In opposition, the plaintiff failed to raise a triable issue of fact, e.g., bysubmitting proof demonstrating that the statute of limitations was tolled by the continuousrepresentation doctrine, or otherwise (see Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749, 750[2011]). Accordingly, the Supreme Court properly concluded that the action, commenced almostsix years after the alleged legal malpractice was committed, was barred by CPLR 214 (6), and,thus, properly granted that branch of the defendant's motion which was for summary judgmentdismissing the complaint as time-barred.
That branch of the plaintiff's motion which was denominated as one for leave to renew andreargue her opposition to the aforementioned branch of the defendant's motion was, in actuality,solely one for leave to reargue, the denial of which is not appealable (see Gelobter v Fox, 90 AD3d 829,830 [2011]). Likewise, the Supreme Court's denial of that branch of the plaintiff's motion whichwas for poor person relief is not appealable as of right, as it does not affect a substantial right ofthe appealing party (see CPLR 5701 [a] [2] [v]), and we decline to grant leave to appeal(see Bender, Jenson & Silverstein, LLPv Walter, 67 AD3d 839 [2009]).
The Supreme Court providently exercised its discretion in denying that branch of theplaintiff's motion which was for recusal (see Saferstein v Klein, 288 AD2d 206 [2001]).Skelos, J.P., Leventhal, Lott and Miller, JJ., concur.