| Meredith v Siben & Siben, LLP |
| 2015 NY Slip Op 06120 [130 AD3d 791] |
| July 15, 2015 |
| Appellate Division, Second Department |
[*1]
| Karen Meredith, Appellant, v Siben &Siben, LLP, Respondent. |
Ateshoglou & Aiello, P.C., New York, N.Y. (Steven D. Ateshoglou of counsel),for appellant.
Garcia & Stallone, Deer Park, N.Y. (Eric N. Bailey of counsel), forrespondent.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appealsfrom an order of the Supreme Court, Nassau County (Brandveen, J.), entered October 2,2013, which granted that branch of the defendant's motion which was, in effect, forsummary judgment dismissing the complaint as time-barred.
Ordered that the order is affirmed, with costs.
Initially, contrary to the plaintiff's contention, the defendant did not waive its statuteof limitations defense, asserted in its answer, by failing to make a pre-answer motion todismiss (see Rich v Lefkovits, 56 NY2d 276 [1982]). Rather, a statute oflimitations defense may be asserted after joinder of issue in a motion for summaryjudgment pursuant to CPLR 3212 (see Rich v Lefkovits, 56 NY2d at 282).Although the defendant's motion was made pursuant to CPLR 3211 (a) (5), the partiesclearly charted a summary judgment course by submitting extensive documentaryevidence and factual affidavits laying bare their proof (see One Monroe, LLC v City ofNew York, 89 AD3d 812, 813 [2011]; Tendler v Bais Knesses of New Hempstead, Inc., 52 AD3d500, 502 [2008]; Harris vHallberg, 36 AD3d 857, 858-859 [2007]; O'Dette v Guzzardi, 204AD2d 291, 292 [1994]; see alsoSchultz v Estate of Sloan, 20 AD3d 520 [2005]; Kavoukian v Kaletta,294 AD2d 646, 646-647 [2002]). Thus, the defendant's motion is properly treated as amotion for summary judgment dismissing the complaint as time-barred.
Further, the Supreme Court properly concluded that the plaintiff's legal malpracticecause of action is time-barred. The defendant met its prima facie burden of demonstratingthat the action was commenced more than three years after the alleged malpracticeoccurred (see Farage vEhrenberg, 124 AD3d 159, 164 [2014]; Fleyshman v Suckle & Schlesinger, PLLC, 91 AD3d591, 592 [2012]; Rupolo vFish, 87 AD3d 684, 685 [2011]). In opposition, the plaintiff failed to raise atriable issue of fact as to whether the statute of limitations was tolled by continuousrepresentation (see Farage v Ehrenberg, 124 AD3d at 165; Fleyshman vSuckle & Schlesinger, PLLC, 91 AD3d at 592). In that respect, the evidencedemonstrated that after the plaintiff and her husband retained the defendant law firm torepresent them in a personal injury action, the defendant law firm retained the law firm ofBauman & Kunkis, P.C. (hereinafter Bauman & Kunkis), to represent theplaintiff and her husband [*2]in that action, and thereafterhad no contact with the plaintiff. All of the work on the case, from filing the pleadings toselecting a jury, was performed by Bauman & Kunkis. Before the case could betried, it was dismissed based on willful default, and Bauman & Kunkis wassubstituted with a different law firm, which sought to restore the action. Even if thearrangement between the defendant and Bauman & Kunkis could be equated withjoint representation, under the circumstances of this case, the defendant's representationof the plaintiff would have terminated as of December 1, 2006, the date on whichBauman & Kunkis was substituted. Accordingly, the present legal malpractice causeof action, commenced on or about April 9, 2012, was untimely.
The plaintiff's remaining contentions are without merit. Skelos, J.P., Hall, Romanand Duffy, JJ., concur.