| Singh v Edelstein |
| 2013 NY Slip Op 01255 [103 AD3d 873] |
| February 27, 2013 |
| Appellate Division, Second Department |
| Bibi Singh, Appellant, v Adam J. Edelstein,Respondent. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Matthew R. Jaegerof counsel), for respondent.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appealsfrom (1) an order of the Supreme Court, Queens County (McDonald, J.), dated January26, 2012, which granted that branch of the defendant's motion which was pursuant toCPLR 3211 (a) (5) to dismiss the complaint as barred by the applicable statute oflimitations, and (2) a judgment of the same court entered March 8, 2012, which, upon theorder, dismissed the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of the judgment in the action (see Matterof Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the orderare brought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The plaintiff commenced this action against her divorce attorney in August 2011,claiming that the defendant attorney committed legal malpractice when he failed tosupervise the execution of a postnuptial agreement in November 2007. The defendantmoved, inter alia, pursuant to CPLR 3211 (a) (5) to dismiss the complaint as barred bythe applicable statute of limitations. The Supreme Court granted that branch of thedefendant's motion and dismissed the complaint as time-barred.
To dismiss a complaint pursuant to CPLR 3211 (a) (5) on the ground that it is barredby the applicable statute of limitations, a defendant bears the initial burden ofestablishing, prima facie, that the time in which to sue has expired (see DeStaso v Condon Resnick,LLP, 90 AD3d 809, 812 [2011]). The statute of limitations for a cause of actionsounding in legal malpractice is three years (see Matter of R.M. Kliment & Frances Halsband, Architects[McKinsey & Co., Inc.], 3 NY3d 538 [2004]). The three-year period oflimitations runs from the day of the alleged malpractice (see Alicanti v Bianco, 2 AD3d373, 374 [2003], citing McCoy v Feinman, 99 NY2d 295, 306 [2002]). Thestatute of limitations for legal [*2]malpractice may betolled by the continuous representation doctrine " 'where there is a mutual understandingof the need for further representation on the specific subject matter underlying themalpractice claim' " (Zorn vGilbert, 8 NY3d 933, 934 [2007], quoting McCoy v Feinman, 99 NY2dat 306).
Here, the defendant met his initial burden by establishing that the alleged malpracticeoccurred in November 2007, when the postnuptial agreement was executed, and that theaction was commenced in August 2011, more than three years thereafter. Accordingly,the burden then shifted to the plaintiff to raise a question of fact as to whether the statuteof limitations was tolled or otherwise inapplicable, or whether she actually commencedthis action within the applicable limitations period (see Jalayer v Stigliano, 94 AD3d 702, 703 [2012];DeStaso v Condon Resnick, LLP, 90 AD3d at 812; Williams v New York City Health& Hosps. Corp., 84 AD3d 1358, 1359 [2011]; Krichmar v Scher, 82 AD3d1164, 1165 [2011]). The plaintiff failed to meet that burden (see Williamson vPricewaterhouseCoopers LLP, 9 NY3d 1, 11 [2007]; Rodeo Family Enters., LLC vMatte, 99 AD3d 781, 784 [2012]).
Although the complaint alleges causes of action sounding in legal malpractice andbreach of contract, the breach of contract cause of action is duplicative of the legalmalpractice cause of action (seeGaskin v Harris, 98 AD3d 941, 943 [2012]; Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C., 80AD3d 573, 574 [2011]). Accordingly, dismissal of the cause of action sounding inlegal malpractice as time-barred warranted dismissal of the complaint in its entirety.Dillon, J.P., Dickerson, Leventhal and Hinds-Radix, JJ., concur.