| Lindsay v Pasternack Tilker Ziegler Walsh Stanton &Romano LLP |
| 2015 NY Slip Op 04819 [129 AD3d 790] |
| June 10, 2015 |
| Appellate Division, Second Department |
[*1]
| Rudie Lindsay, Respondent, v PasternackTilker Ziegler Walsh Stanton & Romano LLP, Formerly Known as Brecher,Fishman, Pasternack, Walsh, Tilker & Ziegler, P.C.,Appellant. |
Gordon & Rees, LLP, New York, N.Y. (Joseph Salvo and Ryan Sestack ofcounsel), for appellant.
The Berkman Law Office, LLC, Brooklyn, N.Y. (Robert J. Tolchin and DavidSteigbigel of counsel), for respondent.
In an action to recover damages for legal malpractice, the defendant appeals from anorder of the Supreme Court, Kings County (Sweeney, J.), dated August 27, 2013, whichdenied its motion pursuant to CPLR 3211 (a) (1), (5) and (7) to dismiss thecomplaint.
Ordered that the order is affirmed, with costs.
On November 27, 2006, the plaintiff allegedly was driving his employer's bus whenhe collided with another vehicle. Shortly thereafter, the plaintiff retained the defendant, alaw firm, to represent him in connection with the motor vehicle accident. According tothe defendant, in April 2007, it decided not to prosecute a personal injury action on theplaintiff's behalf and advised the plaintiff of this fact by letter dated June 8, 2007, whilecontinuing to represent the plaintiff with respect to a workers' compensation claim. On orabout October 21, 2010, the plaintiff discharged the defendant and hired a new attorney.In November 2012, the plaintiff commenced this action against the defendant to recoverdamages for legal malpractice. The plaintiff alleged that the defendant failed tocommence a personal injury action on his behalf against the owner and operator of theother vehicle involved in the motor vehicle accident before the statute of limitationsexpired.
The defendant made a pre-answer motion to dismiss the complaint as time-barred,for failure to state a cause of action, and based upon documentary evidence. Thedefendant contended that it did not represent the plaintiff with respect to the personalinjury action, based upon assertions that an attorney formerly with the defendant orallyinformed the plaintiff that "a personal injury action was not feasible" and thereafter sentthe letter dated June 8, 2007, to the plaintiff by regular and certified mail. In support ofthe motion, the defendant submitted a copy of the letter and a blank certified mailreceipt.
In opposition, the plaintiff's attorney noted that the defendant did not submit anaffidavit or affirmation from the attorney who allegedly mailed the letter dated June 8,2007. The attorney further noted that the certified mail receipt was blank, and no returnreceipt was submitted. The plaintiff also submitted a personal affidavit wherein he statedthat he retained the defendant for [*2]both his workers'compensation claim and his personal injury claim, he was never informed that thedefendant would not represent him in a personal injury action, and he never received theletter dated June 8, 2007.
In a reply affidavit, the attorney who allegedly mailed the letter dated June 8, 2007,who was now working at another law firm, stated that she "specifically advised" theplaintiff in a telephone conversation that "a personal injury action was not feasible" andas a result, the defendant "would not be representing him in a personal injury action."She further stated that she sent the letter dated June 8, 2007, to the plaintiff via regularmail and certified mail.
The Supreme Court denied the defendant's motion, and we affirm.
The Supreme Court properly denied that branch of the defendant's motion which waspursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred. When moving todismiss an action pursuant to CPLR 3211 (a) (5), the defendant bears the initial burdenof establishing, prima facie, that the time in which to sue has expired (see Landow v Snow BeckerKrauss, P.C., 111 AD3d 795, 796 [2013]; Tsafatinos v Wilson Elser Moskowitz Edelman & Dicker,LLP, 75 AD3d 546, 546 [2010]). The statute of limitations for a legalmalpractice cause of action is three years (see CPLR 214 [6]). This legal malpracticeaction accrued when the statute of limitations for the underlying personal injury actionexpired (see Davis v Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren,258 AD2d 321, 321 [1999]; Goicoechea v Law Offs. of Stephen R. Kihl, 234AD2d 507, 508 [1996]). Here, the plaintiff's underlying personal injury action accruedon November 27, 2006, when the accident occurred, and the statute of limitations expiredthree years later, on November 27, 2009 (see CPLR 214 [5]). Thus, this legalmalpractice action accrued on November 27, 2009, and the statute of limitations expiredthree years later, on November 27, 2012. This action was commenced on November 15,2012. Therefore, this action was not time-barred.
The Supreme Court also properly denied that branch of the defendant's motion whichwas to dismiss the complaint pursuant to CPLR 3211 (a) (1). The evidence submitted bythe defendant, consisting of the June 8, 2007, letter, the blank certified mail receipt, andthe affidavit of its former attorney, did not constitute documentary evidence (see 25-01 Newkirk Ave., LLC vEverest Natl. Ins. Co., 127 AD3d 850 [2015]; Attias v Costiera, 120 AD3d1281, 1282-1283 [2014]).
Further, the Supreme Court properly denied that branch of the defendant's motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the complaint. The gravamen of thedefendant's defense is that there was no attorney-client relationship between it and theplaintiff when the statute of limitations for the underlying personal injury action expired.The elements of a cause of action sounding in legal malpractice include the existence ofan attorney-client relationship between the plaintiff and the defendant (see Terio v Spodek, 63 AD3d719, 721 [2009]). "On a pre-answer motion to dismiss pursuant to CPLR 3211, thepleading is to be afforded a liberal construction and the plaintiff's allegations areaccepted as true and accorded the benefit of every possible favorable inference" (Barker v Amorini, 121 AD3d823, 824 [2014] [internal quotation marks and citation omitted]). Here, it isundisputed that the defendant was retained by the plaintiff to handle claims with respectto the automobile accident. Accepting the plaintiff's statements of fact as true, thecomplaint states a cause of action for legal malpractice against the defendant.
Where evidentiary materials are considered in support of a motion pursuant to CPLR3211 (a) (7), "the question becomes whether the plaintiff has a cause of action, notwhether the plaintiff has stated one and, unless it has been shown that a material fact asclaimed by the plaintiff to be one is not a fact at all and unless it can be said that nosignificant dispute exists regarding it, dismissal should not eventuate" (Agai v Liberty Mut. AgencyCorp., 118 AD3d 830, 832 [2014]; see Guggenheimer v Ginzburg, 43NY2d 268, 275 [1977]). Here, the evidence submitted by the defendant failed toestablish that the plaintiff has no cause of action. The evidence did not show that theletter dated June 8, 2007, was sent by certified mail return receipt requested, since thecertified mail receipt was never filled out and there was no return receipt submitted. Withrespect to regular mail, "[t]he mere assertion that notice was mailed, supported bysomeone with no personal knowledge of the mailing," in the absence of proof of officepractices to ensure that the item was properly mailed, does not give rise to thepresumption of receipt (Washington v St. Paul Surplus Lines Ins. Co., 200 AD2d[*3]617, 618 [1994]; see Nassau Ins. Co. vMurray, 46 NY2d 828, 829 [1978]; TD Bank, N.A. v Leroy, 121 AD3d 1256, 1258 [2014]; Long Is. Sports Dome v ChubbCustom Ins. Co., 23 AD3d 441, 442 [2005]). CPLR 2103 (f) (1) defines mailingas "the deposit of a paper enclosed in a first class postpaid wrapper, addressed to theaddress designated by a person for that purpose or, if none is designated, at that person'slast known address, in a post office or official depository under the exclusive care andcustody of the United States Postal Service within the state." Here, while the defendant'sformer attorney averred that she "sent" the letter dated June 8, 2007, by regular mail, shedid not state that she deposited the letter in a United States Post Office depository. Sincethe defendant's evidence failed to establish that a material fact as claimed by the plaintiff,namely, the existence of an attorney-client relationship, was "not a fact at all" and that"no significant dispute exists regarding it" (Guggenheimer v Ginzburg, 43 NY2dat 275), the Supreme Court properly denied that branch of the defendant's motion whichwas pursuant to CPLR 3211 (a) (7) to dismiss the complaint. Leventhal, J.P., Chambers,Roman and Hinds-Radix, JJ., concur.