| Bullfrog, LLC v Nolan |
| 2013 NY Slip Op 00168 [102 AD3d 719] |
| January 16, 2013 |
| Appellate Division, Second Department |
| Bullfrog, LLC, Respondent, v Daniel T. Nolan,Defendant, and Kevin Barry, Appellant. |
—[*1] John Gifford Molloy, P.C., Somers, N.Y., for respondent.
In an action for replevin and to recover damages for legal malpractice, the defendantKevin Barry appeals from an order of the Supreme Court, Dutchess County (Wood, J.),dated December 19, 2011, which denied his motion pursuant to CPLR 3211 (a) (5) todismiss the cause of action to recover damages for legal malpractice as time-barred andfor summary judgment dismissing the cause of action for replevin insofar as assertedagainst him.
Ordered that the order is reversed, on the law, with costs, and the motion of thedefendant Kevin Barry pursuant to CPLR 3211 (a) (5) to dismiss the cause of action torecover damages for legal malpractice as time-barred and for summary judgmentdismissing the cause of action for replevin insofar as asserted against him is granted.
On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred bythe applicable statute of limitations, a defendant must establish, prima facie, that the timewithin which to sue has expired (see Yang v Oceanside Union Free School Dist., 90 AD3d649 [2011]). Once that showing has been made, the burden shifts to the plaintiff toestablish that the statute of limitations has been tolled or that the plaintiff actuallycommenced the action within the applicable limitations period (see id.).
An action to recover damages for legal malpractice must be commenced within threeyears after the accrual of the cause of action (see CPLR 214 [6]). Here, thedefendant Kevin Barry (hereinafter the appellant) sustained his initial burden on thatbranch of his motion which was to dismiss the cause of action to recover damages forlegal malpractice by demonstrating that the applicable limitations period had expiredwith respect to the alleged acts of legal malpractice. Contrary to the Supreme Court'sdetermination, the evidence submitted by the plaintiff in opposition was insufficient toraise a triable issue of fact as to whether the continuous representation doctrine tolled therunning of the statute of limitations (see Hasty Hills Stables, Inc. v Dorfman, Lynch, Knoebel &Conway, LLP, 52 AD3d 566, 567-568 [2008]; Melendez v Bernstein, 29AD3d 872, 873 [2006]; Dignelli v Berman, 293 AD2d 565, 566 [2002];Muller v Sturman, 79 AD2d 482, 486-487 [1981]). Accordingly, the cause ofaction to recover damages for legal malpractice should have been dismissed astime-barred.[*2]
The appellant was also entitled to summaryjudgment dismissing the plaintiff's cause of action for replevin insofar as asserted againsthim. The appellant established, prima facie, that he did not unreasonably refuse to returnthe documents requested by the plaintiff (see Khoury v Khoury, 78 AD3d 903, 904 [2010]; Wielv Curtis, Mallet-Prevost, Colt & Mosle, 66 Misc 2d 466, 469 [1970], affd 36AD2d 1027 [1971], affd 30 NY2d 500 [1972]). In opposition to the motion, theplaintiff failed to raise a triable issue of fact. The Supreme Court, therefore, should havegranted that branch of the appellant's motion which was for summary judgmentdismissing the cause of action for replevin insofar as asserted against him. Mastro, J.P.,Dickerson, Lott and Austin, JJ., concur.