| Alizio v Ruskin Moscou Faltischek, P.C. |
| 2015 NY Slip Op 01909 [126 AD3d 733] |
| March 11, 2015 |
| Appellate Division, Second Department |
[*1]
| Joseph Alizio, Respondent, v Ruskin MoscouFaltischek, P.C., Appellant. |
Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (Douglas J. Good of counsel),appellant pro se.
Sahn Ward Coschignano & Baker, PLLC, Uniondale, N.Y. (Andrew M. Rothand Jon A. Ward of counsel), for respondent.
In an action, inter alia, to recover damages for legal malpractice, the defendantappeals, as limited by its brief, from so much of an order of the Supreme Court, NassauCounty (Iannacci, J.), entered August 1, 2014, as upon reargument, adhered to a priordetermination in an order entered May 22, 2014, denying that branch of its motion whichwas to dismiss the legal malpractice causes of action as time-barred.
Ordered that the order entered August 1, 2014, is reversed insofar as appealed from,on the law, with costs, upon reargument, the determination in the order entered May 22,2014, denying that branch of the defendant's motion which was to dismiss the legalmalpractice causes of action as time-barred is vacated, and thereupon, that branch of thedefendant's motion is granted.
In April 2004, the plaintiff retained the defendant to serve as co-counsel with theplaintiff's then-counsel to represent him in six consolidated actions (hereinafter theactions). Thereafter, the defendant became sole counsel for the plaintiff in the actions.Sometime in early April 2010, the plaintiff discharged the defendant and retained newcounsel to represent him in the actions. The defendant subsequently prepared consents tochange attorneys (hereinafter the consents), which were executed by the defendant, theplaintiff, and new counsel on April 20, 2010. Sometime thereafter, new counsel preparedand distributed revised consent forms for certain of the actions on the ground that therewere errors in the captions of the consents pertaining to those actions. As relevant to thisappeal, the revised consent in the action entitled Alizio v Perpignano, index No.19181/03 (action No. 1), was executed by the parties on May 12, 2010 (hereinafter theMay 2010 revised consent). The consent in the action entitled P.J. Alizio Realty, Inc.v Eisenberg, index No. 312/04 (action No. 2), was not revised and was executed bythe parties on April 20, 2010.
On May 10, 2013, the plaintiff commenced this action against the defendant, interalia, to recover damages for legal malpractice in connection with the defendant'srepresentation of the plaintiff in or around 2008 in action Nos. 1 and 2. Thereafter, thedefendant moved to dismiss the complaint as time-barred. In an order entered May 22,2014, the Supreme Court, inter alia, denied that branch of the defendant's motion whichwas to dismiss the causes of action alleging legal malpractice as time-barred. Thedefendant thereafter moved for leave to reargue that branch of its [*2]motion. In the order appealed from, the Supreme Court,upon reargument, adhered to its original determination in the order entered May 22,2014. For the reasons set forth herein, we conclude that the causes of action alleginglegal malpractice are time-barred.
" 'On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) onstatute of limitations grounds, the moving defendant must establish, prima facie, that thetime in which to commence the action has expired' " (Landow v Snow Becker Krauss,P.C., 111 AD3d 795, 796 [2013], quoting Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO, 91AD3d 768, 768-769 [2012]; see Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d1037, 1038 [2013]). The statute of limitations for a cause of action alleging legalmalpractice is three years (see CPLR 214 [6]). A cause of action to recoverdamages for legal malpractice accrues when the malpractice is committed, not when it isdiscovered (see Town ofWallkill v Rosenstein, 40 AD3d 972, 973 [2007]).
"Causes of action alleging legal malpractice which would otherwise be barred by thestatute of limitations are timely if the doctrine of continuous representation applies" (Macaluso v Del Col, 95 AD3d959, 960 [2012]; seeLouzoun v Kroll Moss & Kroll, LLP, 113 AD3d 600, 601 [2014]). Thecontinuous representation doctrine tolls the statute of limitations where "there is a mutualunderstanding of the need for further representation on the specific subject matterunderlying the malpractice claim" (McCoy v Feinman, 99 NY2d 295, 306[2002]; see DeStaso v CondonResnick, LLP, 90 AD3d 809, 812 [2011]). Here, there is no real dispute that,pursuant to the doctrine of continuous representation, the three-year statute of limitationspertaining to the defendant's alleged legal malpractice in 2008 in action Nos. 1 and 2 wastolled during the time period when the defendant continued to represent the plaintiff inthose actions (see McCoy v Feinman, 99 NY2d at 306; DeStaso v CondonResnick, LLP, 90 AD3d at 812). At issue is when that representation and tollingceased and the three-year statute of limitations period began.
The defendant met its prima facie burden by establishing that the statute oflimitations expired on April 20, 2013, three years after the consents were executed by theplaintiff, the defendant, and new counsel. The defendant took no acts on behalf of theplaintiff in the actions after the consents were signed on April 20, 2010. The parties'execution of the consents on that date in all of the actions, including action Nos. 1 and 2,demonstrated the end of the defendant's representation of the plaintiff and the parties'mutual understanding that any future legal representation in the actions would beundertaken by the plaintiff's new counsel (see McCoy v Feinman, 99 NY2d at306; Landow v Snow Becker Krauss, P.C., 111 AD3d at 796). Therefore, thedefendant met its prima facie burden of establishing that the three-year statute oflimitations period for commencing a cause of action alleging legal malpractice hadexpired at the time the plaintiff commenced this action on May 10, 2013.
Upon that showing, the burden then shifted to the plaintiff to raise a question of factas to whether the tolling ceased on a date after April 20, 2010, such that the causes ofaction alleging legal malpractice were timely commenced (see Landow v SnowBecker Krauss, P.C., 111 AD3d at 796-797; Zaborowski v Local 74, Serv.Empls. Intl. Union, AFL-CIO, 91 AD3d at 768-769). Here, the plaintiff failed to doso. The plaintiff contends that the statute of limitations did not begin running until May12, 2010, when the May 2010 revised consent in action No. 1 was executed. However,the plaintiff failed raise a question of fact as to whether the attorney-client relationshipbetween the defendant and the plaintiff continued in the actions after April 20, 2010,when the consents were executed (see Farage v Ehrenberg, 124 AD3d 159 [2014]; McCoyv Feinman, 99 NY2d at 306; Landow v Snow Becker Krauss, P.C., 111AD3d at 796). The May 2010 revised consent, which was prepared and distributed bynew counsel, not the defendant, and related only to action No. 1, constituted "a merememorialization of what had already occurred" in April 2010 (Farage vEhrenberg, 124 AD3d at 168).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court should have, upon reargument, granted that branchof the defendant's motion which was to dismiss the legal malpractice causes of action astime-barred. Rivera, J.P., Miller, Hinds-Radix and Duffy, JJ., concur.