| Louzoun v Kroll Moss & Kroll, LLP |
| 2014 NY Slip Op 00096 [113 AD3d 600] |
| January 8, 2014 |
| Appellate Division, Second Department |
| Henriette Louzoun, Also Known as H. Malka Louzoun,Respondent, v Kroll Moss and Kroll, LLP, et al.,Appellants. |
—[*1] Henriette Louzoun, also known as H. Malka Louzoun, New York, N.Y., respondentpro se.
In an action to recover damages for legal malpractice, the defendants appeal from anorder of the Supreme Court, Nassau County (Feinman, J.), entered February 6, 2013,which denied their motion pursuant to CPLR 3211 (a) (1) and (5) to dismiss thecomplaint based upon documentary evidence and as barred by the applicable statute oflimitations.
Ordered that the order is affirmed, with costs.
The defendant law firm, Kroll Moss and Kroll, LLP (hereinafter KMK), representedthe plaintiff at a matrimonial trial that concluded on February 21, 2008, and in theexecution of a related visitation stipulation dated May 9, 2008. The plaintiff alleges thatKMK committed various acts of professional malpractice during the course of itsrepresentation. The instant action was commenced against KMK and the individualattorney defendants by the filing of a summons and complaint on August 9, 2011. Thedefendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (5),arguing that the action was commenced beyond the three-year statute of limitationsmeasured from the termination of the attorney-client relationship.
In support of their motion, the defendants proffered an email message from theplaintiff dated August 7, 2008, in which the plaintiff expressed dissatisfaction withKMK, accused KMK of having committed malpractice, disputed fees, and demanded herlegal file. The defendants argued that the August 7, 2008, email message ended the trustand confidence required of a continuing attorney-client relationship, rendering the actioncommenced on August 9, 2011, untimely. In opposition, the plaintiff argued that heraction was timely commenced, as the defendants' representation of her continued untilAugust 19, 2008, the date on which she executed a formal consent to change attorney.The Supreme Court denied the defendants' motion.
To dismiss a complaint pursuant to CPLR 3211 (a) (5) as barred by the applicablestatute of limitations, the defendant bears the burden of establishing, prima facie, that thetime in which to sue had expired prior to the commencement of the action (see Singh v Edelstein, 103AD3d 873 [2013]; DeStasov Condon Resnick, LLP, 90 AD3d 809, 812 [2011]). The statute of limitationsfor legal malpractice is three years measured from the date of the alleged malpractice(see CPLR 214 [6]; [*2]McCoy vFeinman, 99 NY2d 295, 301 [2002]; Shumsky v Eisenstein, 96 NY2d 164,166 [2001]; Singh v Edelstein, 103 AD3d at 873), but may be tolled by operationof the continuous representation doctrine (see Zorn v Gilbert, 8 NY3d 933, 934 [2007]; Shumskyv Eisenstein, 96 NY2d at 167). Documentary evidence may entitle a defendant to thedismissal of a complaint pursuant to CPLR 3211 (a) (1), but only where such evidence"conclusively establishes a defense to the asserted claims as a matter of law" (Leon vMartinez, 84 NY2d 83, 88 [1994]).
Here, the plaintiff's email message dated August 7, 2008, does not conclusivelycontradict the allegation, set forth in paragraph 103 of her complaint, that the defendantswere not discharged as her counsel until August 19, 2008. The email message makesdemands and accusations but does not necessarily or unequivocally terminate the parties'attorney-client relationship. The email message states, inter alia, that, "without thejudgment being signed, I have no money with which to pay," which suggests the need forfurther legal work to be performed, and also states that since the plaintiff and counselboth attend the same synagogue, "it will be a pity to have bad blood between us." In lightof those statements, and the consent to change attorney that was not executed untilAugust 19, 2008, the defendants failed to conclusively establish that the attorney-clientrelationship did not continue until the latter date. Accordingly, the defendants' motion todismiss the complaint was properly denied. Eng, P.J., Skelos, Dillon and Sgroi, JJ.,concur.