| Quinn v McCabe, Collins, McGeough & Fowler,LLP |
| 2016 NY Slip Op 03153 [138 AD3d 1085] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| Michael Quinn, Appellant, v McCabe, Collins,McGeough & Fowler, LLP, et al., Defendants, and Picciano & Scahill, P.C., etal., Respondents. |
Schwartz & Ponterio, PLLC, New York, NY (Matthew F. Schwartz of counsel),for appellant.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, NY (Lisa L.Shrewsberry of counsel), for respondents.
In an action to recover damages for legal malpractice, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Nassau County (Winslow,J.), entered May 5, 2015, as granted that branch of the motion of the defendants Picciano& Scahill, P.C., and Sean Schaefer which was pursuant to CPLR 3211 (a) (5) todismiss the complaint insofar as asserted against them as time-barred.
Ordered that the order is affirmed insofar as appealed from, with costs.
"On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barredby the applicable statute of limitations, a defendant must establish, prima facie, that thetime within which to sue has expired. Once that showing has been made, the burdenshifts to the plaintiff to raise a question of fact as to whether the statute of limitations hasbeen tolled, an exception to the limitations period is applicable, or the plaintiff actuallycommenced the action within the applicable limitations period" (Tsafatinos v Law Off. of SanfordF. Young, P.C., 121 AD3d 969, 969 [2014] [citation omitted]; see Landow v Snow BeckerKrauss, P.C., 111 AD3d 795, 796 [2013]; Bullfrog, LLC v Nolan, 102 AD3d 719, 719 [2013]). Thestatute of limitations for a cause of action alleging legal malpractice is three years (seeCPLR 214 [6]; Farage vEhrenberg, 124 AD3d 159, 163 [2014]). "Accrual is measured from thecommission of the alleged malpractice, when all facts necessary to the cause of actionhave occurred and the aggrieved party can obtain relief in court, regardless of when theoperative facts are discovered by the plaintiff" (Farage v Ehrenberg, 124 AD3d at164 [citations omitted]; see McCoy v Feinman, 99 NY2d 295, 301 [2002]; St. Stephens Baptist Church, Inc. vSalzman, 37 AD3d 589, 590 [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(see Glamm v Allen, 57 NY2d 87, 91-94 [1982]; Farage v Ehrenberg,124 AD3d at 164; see alsoAlizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735 [2015]). Thecontinuous representation doctrine tolls the statute of limitations where there are clearindicia of "an ongoing, continuous, developing, and dependent relationship between theclient and the attorney" (Aseel vJonathan E. Kroll & Assoc., PLLC, 106 AD3d 1037, 1038 [2013] [internalquotation marks omitted]; see Farage v Ehrenberg, 124 AD3d at164).
[*2] Here, the defendants Picciano& Scahill, P.C., and Sean Schaefer (hereinafter together the Picciano defendants)met their prima facie burden by establishing that the statute of limitations expired onMarch 28, 2009, three years after a consent to change attorney form was executed by theplaintiff, the Picciano defendants, and new counsel, and that they did not act on behalf ofthe plaintiff in the subject actions after the consent was signed (see Alizio v RuskinMoscou Faltischek, P.C., 126 AD3d at 735). Therefore, the Picciano defendants mettheir prima facie burden of establishing that the three-year statute of limitations periodfor commencing an action alleging legal malpractice had expired at the time the plaintiffcommenced this action on or about September 11, 2014 (see id. at 735-736;see generally Bullfrog, LLC v Nolan, 102 AD3d at 720).
Contrary to the plaintiff's contention, he failed to raise a question of fact as towhether the continuous representation doctrine tolled the running of the statute oflimitations (see Landow v Snow Becker Krauss, P.C., 111 AD3d at 797;Bullfrog, LLC v Nolan, 102 AD3d at 720; Hasty Hills Stables, Inc. v Dorfman, Lynch, Knoebel &Conway, LLP, 52 AD3d 566, 567-568 [2008]). Further, the plaintiff failed toestablish that facts essential to justify opposition to the Picciano defendants' motion mayexist, but, absent discovery, could not be stated (see CPLR 3211 [d]; Bennett v Panos, 120 AD3d729, 731 [2014]).
The plaintiff's remaining contention is without merit.
Accordingly, the Supreme Court properly granted that branch of the Piccianodefendants' motion which was pursuant to CPLR 3211 (a) (5) to dismiss, as time-barred,the complaint insofar as asserted against them. Mastro, J.P., Dillon, Hinds-Radix andMaltese, JJ., concur.