| Aseel v Jonathan E. Kroll & Assoc., PLLC |
| 2013 NY Slip Op 03806 [106 AD3d 1037] |
| May 29, 2013 |
| Appellate Division, Second Department |
| Kevin Aseel, Appellant, v Jonathan E. Kroll &Associates, PLLC, et al., Respondents. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Joan Martino Faleyof counsel), for respondents.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals,as limited by his brief, from (1) so much of an order of the Supreme Court, NassauCounty (Jaeger, J.), entered July 27, 2011, as granted that branch of the defendants'motion which was pursuant to CPLR 3211 (a) to dismiss so much of the complaint asalleged legal malpractice against the defendants Kroll, Moss, and Kroll LLP, Martin N.Kroll, and Jonathon E. Kroll, and (2) so much of a judgment of the same court enteredAugust 23, 2011, as, upon the order, is in favor of those defendants and against himdismissing the complaint. The notice of appeal from the order is deemed also to be anotice of appeal from the judgment (see CPLR 5501 [c]).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order arebrought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
On November 8, 2010, the plaintiff commenced this action to recover damages, interalia, for legal malpractice allegedly committed by the defendants in connection with adivorce action. The defendants moved pursuant to CPLR 3211 (a) to dismiss thecomplaint. Among other things, the Supreme Court granted that branch of the motionwhich was to dismiss the action as time-barred.
The statute of limitations for legal malpractice is three years (see CPLR 214[6]). The limitations period may be tolled by the continuous representation doctrine "'where there is a mutual understanding of the need for further representation on thespecific subject matter underlying the malpractice claim' " (Zorn v Gilbert, 8 NY3d933, 934 [2007], quoting McCoy v Feinman, 99 NY2d 295, 306 [2002])."For the doctrine to apply, there must be 'clear indicia of an ongoing, continuous,developing, [*2]and dependent relationship between theclient and the attorney' " (Piliero v Adler & Stavros, 282 AD2d 511, 512 [2001],quoting Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506[1990]). "One of the predicates for the application of the doctrine is continuing trust andconfidence in the relationship between the parties" (Luk Lamellen U. KupplungbauGmbH v Lerner, 166 AD2d at 507; see Coyne v Bersani, 61 NY2d 939[1984]; Piliero v Adler & Stavros, 282 AD2d at 512).
Here, contrary to the plaintiff's sole contention on the issue of timeliness, theSupreme Court did not err in concluding that the relationship necessary to invoke thecontinuous representation rule ceased to exist by November 5, 2007, when the plaintiffsurreptitiously removed his file from the defendants' office. By so removing the file, theplaintiff evinced his lack of trust and confidence in the parties' relationship, and hisintention to discharge the defendants as his attorneys (see generally Fleyshman v Suckle & Schlesinger, PLLC, 91AD3d 591, 592 [2012]; cf. Piliero v Adler & Stavros, 282 AD2d at 512).Accordingly, because, contrary to the plaintiff's contention, the relationship necessary toinvoke the continuous representation doctrine terminated more than three years prior tothe commencement of this action, the Supreme Court properly granted that branch of thedefendants' motion which was pursuant to CPLR 3211 (a) to dismiss so much of thecomplaint as alleged legal malpractice against the defendants Kroll, Moss and Kroll,LLP, Martin N. Kroll, and Jonathon E. Kroll (see Fleyshman v Suckle & Schlesinger,PLLC, 91 AD3d at 592; Rupolo v Fish, 87 AD3d 684 [2011]; Piliero v Adler &Stavros, 282 AD2d at 512).
In light of our determination, we need not reach the parties' remaining contentions.Skelos, J.P., Balkin, Austin and Sgroi, JJ., concur.