| Landow v Snow Becker Krauss, P.C. |
| 2013 NY Slip Op 07710 [111 AD3d 795] |
| November 20, 2013 |
| Appellate Division, Second Department |
| Jonathan S. Landow, Appellant, v Snow BeckerKrauss, P.C., et al., Respondents. |
—[*1] Abrams, Gorelick, Friedman & Jacobson, LLP, New York, N.Y. (Barry Jacobs andShari Sckolnick of counsel), for respondent Snow Becker Krauss, P.C. Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Jamie R. Wozman ofcounsel), for respondents Richard Reichler and Meltzer, Lippe, Goldstein and Breitstone,LLP.
In an action to recover damages for legal malpractice and breach of contract, theplaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court,Nassau County (Sher, J.), dated July 10, 2012, as granted those branches of the motion ofthe defendant Snow Becker Krauss, P.C., and the separate motion of the defendantsRichard Reichler and Meltzer, Lippe, Goldstein, and Breitstone, LLP, which werepursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, the cause of action alleginglegal malpractice insofar as asserted against each of them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
On March 5, 2003, the defendants, Richard Reichler, Snow Becker Krauss, P.C., andMeltzer, Lippe, Goldstein, and Breitstone, LLP, allegedly advised the plaintiff in anopinion letter that his proposed sale of certain property would not result in the loss of histax deferment status. In 2007, the Internal Revenue Service (hereinafter the IRS) notifiedthe plaintiff that its determination was to the contrary, and directed him to remit backtaxes, along with penalties and interest, totaling approximately $5 million. The plaintiffallegedly retained the services of the defendants to represent him against the IRS. OnMarch 31, 2009, the IRS concluded that its determination was correct. One month later,on April 30, 2009, the plaintiff discharged counsel and retained new counsel. He filed apetition in the United States Tax Court challenging the IRS's determination, but,ultimately, on July 25, 2011, the court concluded that the IRS's determination wascorrect. On December 29, 2011, the plaintiff commenced this action alleging, inter alia,legal malpractice against the defendants, and they moved, inter alia, to dismiss that causeof action as time-barred. The Supreme Court granted those branches of their respectivemotions.
"On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on statute oflimitations grounds, the moving defendant must establish, prima facie, that the time inwhich to [*2]commence the action has expired" (Zaborowski v Local 74, Serv.Empls. Intl. Union, AFL-CIO, 91 AD3d 768, 768-769 [2012]). In a legalmalpractice action, the statute of limitations is three years (see CPLR 214 [6])."A legal malpractice claim accrues 'when all the facts necessary to the cause of actionhave occurred and an injured party can obtain relief in court' " (McCoy vFeinman, 99 NY2d 295, 301 [2002], quoting Ackerman v Price Waterhouse,84 NY2d 535, 541 [1994]). Here, the defendants met their prima facie burden byestablishing that the cause of action alleging legal malpractice accrued on March 5, 2003,the date they allegedly issued the opinion letter advising the plaintiff that the proposedsale would not result in the loss of his tax deferment status (see Ackerman v PriceWaterhouse, 84 NY2d at 541-543; Byron Chem. Co., Inc. v Groman, 61 AD3d 909 [2009]).Although the plaintiff did not discover that his attorneys' alleged advice was incorrectuntil years later, " '[w]hat is important is when the malpractice was committed, not whenthe client discovered it' " (McCoy v Feinman, 99 NY2d at 301, quotingShumsky v Eisenstein, 96 NY2d 164, 166 [2001]). Therefore, since thedefendants demonstrated that the plaintiff did not commence this action until December29, 2011, more than three years after his claim for legal malpractice accrued, thedefendants established, prima facie, that the claim was time-barred.
Upon that showing, the burden then shifted to the plaintiff to raise a question of factas to whether he actually commenced the action within three years after the legalmalpractice cause of action accrued, the statute of limitations was tolled, or the statute oflimitations relied on by the defendants was otherwise inapplicable (see Zaborowski vLocal 74, Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d at 769). The plaintiff, inopposition to the defendants' showing, relies on the continuous representation doctrine asa toll of the three-year statute of limitations; however, he failed to raise a question of factin this regard. As evidenced by, inter alia, the more than four-year period of time betweenthe issuance of the opinion letter and the plaintiff's alleged retention of the defendants inJuly 2007, during which no further legal representation was undertaken with respect tothe subject matter of the opinion letter, the parties did not contemplate that any furtherrepresentation was needed (see McCoy v Feinman, 99 NY2d at 306; ByronChem. Co., Inc. v Groman, 61 AD3d at 911).
Accordingly, the Supreme Court properly granted those branches of the defendants'respective motions which were pursuant to CPLR 3211 (a) (5) to dismiss, as time-barred,the cause of action alleging legal malpractice.
The defendants' remaining contentions have been rendered academic in light of ourdetermination. Rivera, J.P., Skelos, Chambers and Hall, JJ., concur. [Prior CaseHistory: 36 Misc 3d 1218(A), 2012 NY Slip Op 51393(U).]