| Kitty Jie Yuan v 2368 W. 12th St., LLC |
| 2014 NY Slip Op 05174 [119 AD3d 674] |
| July 9, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Kitty Jie Yuan et al., Appellants, v 2368 West12th Street, LLC, et al., Defendants, and Ronen Shiponi,Respondent. |
James W. Borkowski, White Plains, N.Y., for appellants.
Gordon & Rees, LLP, New York, N.Y. (Ryan J. Sestack of counsel), forrespondent.
In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal,as limited by their brief, from so much of an order of the Supreme Court, Kings County(Pfau, J.), dated April 12, 2013, as granted that branch of the motion of the defendantRonen Shiponi which was pursuant to CPLR 3211 (a) (5) to dismiss the complaintinsofar as asserted against him as time-barred.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the motion of the defendant Ronen Shiponi which was pursuant toCPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against him astime-barred is denied.
On a motion pursuant to CPLR 3211 (a) (5) to dismiss a complaint as barred by theapplicable statute of limitations, the moving defendant must establish, prima facie, thatthe time in which to commence the action has expired (see Beizer v Hirsch, 116 AD3d725 [2014]; Zaborowski vLocal 74, Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d 768, 768-769 [2012]).The burden then shifts to the plaintiff to raise a triable issue of fact as to whether thestatute of limitations is tolled or is otherwise inapplicable (see Beizer v Hirsch, 116 AD3d725 [2014]; Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO, 91AD3d at 769).
Here, the defendant Ronen Shiponi established his prima facie entitlement todismissal of the complaint based on the expiration of the three-year statute of limitationsapplicable to the cause of action, inter alia, to recover damages for legal malpractice(see CPLR 214 [6]). In opposition, however, the plaintiffs raised a question offact as to whether the applicable statute of limitations was tolled by the doctrine ofcontinuous representation (seeBill Kolb, Jr., Subaru, Inc. v LJ Rabinowitz, CPA, 117 AD3d 978, 980 [2014];Macaluso v Del Col, 95AD3d 959, 960-961 [2012]; Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C., 80AD3d 573, 574 [2011]; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016,1017-1018 [2010]; Rehberger vGarguilo & Orzechowski, LLP, 50 AD3d 760, 760 [2008]; Deutsch vPolly N. Passonneau, P.C., 297 AD2d 571 [2002]). Accordingly, the Supreme Courtshould have denied that branch of Shiponi's motion which was pursuant to CPLR 3211(a) (5) to dismiss the complaint insofar as asserted against him as time-barred. Mastro,J.P., Dickerson, Cohen and Miller, JJ., concur.