| Macaluso v Del Col |
| 2012 NY Slip Op 03605 [95 AD3d 959] |
| May 8, 2012 |
| Appellate Division, Second Department |
| Anthony N. Macaluso, Appellant, v Robert James Del Col,Respondent. |
—[*1] Robert James Del Col, Smithtown, N.Y., respondent pro se.
In an action to recover damages for legal malpractice, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Molia, J.), dated June 9, 2011, which granted thedefendant's motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionpursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred is denied.
The defendant represented the plaintiff in a lawsuit arising from a dispute between theplaintiff and his brother regarding a fuel oil company which was jointly owned by the brothers.On July 6, 2007, that lawsuit was settled by a stipulation of settlement entered into in open court(hereinafter the agreement). On August 19, 2010, the plaintiff commenced this action to recoverdamages for legal malpractice against the defendant. The complaint alleged, inter alia, that thedefendant negligently failed to include certain "terms and conditions" in the agreement. Thedefendant moved pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred. Inopposition to the motion, the plaintiff adduced evidence that the defendant continued to representhim in the underlying lawsuit after the date of the agreement. In particular, the plaintiff submittedproof that in October 2007, the defendant had moved to set aside the agreement. In the orderappealed from, the Supreme Court granted the defendant's motion pursuant to CPLR 3211 (a) (5)to dismiss the complaint as time-barred. The plaintiff appeals, and we reverse.
An action to recover damages arising from legal malpractice must be commenced withinthree years after accrual (see CPLR 203 [a]; 214 [6]; McCoy v Feinman, 99NY2d 295, 301 [2002]; Rakusin vMiano, 84 AD3d 1051, 1051-1052 [2011]; Goldman v Akin Gump Strauss Hauer & Feld LLP, 46 AD3d 481,481 [2007]). The action accrues when the malpractice is committed (see McCoy vFeinman, 99 NY2d at 301; Shumsky v Eisenstein, 96 NY2d 164, 166 [2001];Carnevali v Herman, 293 AD2d 698, 698-699 [2002]). Causes of action alleging legalmalpractice which would otherwise be barred by the statute of limitations are timely if thedoctrine of continuous representation applies (see Glamm v Allen, 57 NY2d 87, 94[1982]; Tsafatinos v Wilson ElserMoskowitz Edelman & Dicker, LLP, 75 AD3d 546, 546 [2010]; Minsky v Haber, 74 AD3d 763,764 [2010]).[*2]
On a motion to dismiss a cause of action pursuant toCPLR 3211 (a) (5) on the ground that it is barred by the applicable statute of limitations, adefendant has the initial burden of establishing, prima facie, that the time in which to sue hasexpired (see Kennedy v H. BruceFischer, Esq., P.C., 78 AD3d 1016, 1017 [2010]). Here, the defendant established thatthe legal malpractice claim as alleged in the complaint accrued more than three years prior to thecommencement of this action. The burden then shifted to the plaintiff to raise a question of factas to whether the statute of limitations was tolled or was otherwise inapplicable, or whether theaction was commenced within the applicable limitations period (see DeStaso v Condon Resnick, LLP,90 AD3d 809, 812 [2011]; Williams v New York City Health & Hosps. Corp., 84 AD3d 1358,1359 [2011]; Rakusin v Miano, 84AD3d 1051 [2011]).
Contrary to the Supreme Court's determination, the plaintiff raised an issue of fact as towhether the defendant's representation of the plaintiff until at least October 2007 reflected acourse of continuous representation (see Weiss v Manfredi, 83 NY2d 974, 977[1994]; DeStaso v Condon Resnick, LLP, 90 AD3d at 812-813; Kennedy v H. BruceFischer, Esq., P.C., 78 AD3d at 1017-1018; Gravel v Cicola, 297 AD2d at 621;Pellati v Lite & Lite, 290 AD2d 544, 545-546 [2002]). Accordingly, the Supreme Courterred in granting the defendant's motion pursuant to CPLR 3211 (a) (5) to dismiss the complaintas time-barred.
The defendant's remaining contentions are not properly before this Court. Dillon, J.P., Eng,Belen and Sgroi, JJ., concur.