SHORT FORM ORDER SUPREME COURT-- STATE OF NEW YORK Present:

Transcription

1 SHORT FORM ORDER SUPREME COURT-- STATE OF NEW YORK Present: HON. BRUCE D. ALPERT Justice LOUIS BARBIERI, TRIALIIAS, PART 9 NASSAU COUNTY -against- Plaintiff, INDEX No.501 l/00 MOTION SEQUENCE #s l-2 SHAYNE DACHS, STANISI, CORKER, & SAUER, MOTION DATE: November 8,200l Defendants. The following papers read on these motions: 1. for relief under CPLR for reliefunder CPLR 3214,3 126 & 3212 Notice of Motion Notice of Cross-motion Answering Papers Reply Papers Upon the foregoing papers, it is ordered that the respective applications are determined as hereinafter set forth. Heretofore the plaintiff herein was indicted for the murder of Sergio Taub, Esq. Ultimately, he was convicted and is currently incarcerated as a result thereof.

2 Plaintiff retained the defendant law firm to defend him in the ensuing civil litigation. By Order dated September 16, 1994, plaintiffs in the subject civil action were awarded summary judgment on the issue of liability. The damage phase of the litigation was thereafter tried before a jury. Based upon the resulting verdict, judgment, in the aggregate sum of $580,583.00, was entered against the plaintiff herein on February 28, On April 13, 1995, the plaintiff authorized his attorneys, the defendants herein, to withdraw his appeal and thereby terminated the attorney-client relationship. Central to the plaintiffs position is the assertion that the defendants failed to portray the decedent in an unflattering manner by exposing his alleged involvement in various unsavory and nefarious activities.. Plaintiff contends that such evidence would have had an impact on the jury s verdict. Pursuant to CPLR 214 (6), actions premised on allegations of professional negligence, other than dental, medical or podiatric malpractice, must be initiated within three years of the claim s accrual, whether the underlying theory on which it is predicated rests on principles of contract or tort law. A claim for legal malpractice accrues on the date the act or omission constituting professional negligence occurs. (see, Kahn v Hart 270 AD2d 23 1) Though plaintiff also focuses on counsels purported failure to properly 2

3 investigate the decedent s background prior to trial, this allegation is ancillary to and earlier in time than plaintiffs primary contention that the defendants failed to proffer proof on point during the course of the underlying trial. It follows therefrom that plaintiffs claim accrued no later than January 1995, the month in which the civil action was tried. Inasmuch as the instant action was commenced by the filing of process on March 28,2000, it is subject to dismissal as time barred under CPLR 214 (6), unless the litigation falls within a recognized exception thereto. Although the rule of continuous treatment was first applied in medical malpractice cases (Borgia v City of New York, 12 NY2d 15 l), its application has been held to be just as appropriate in actions concerning legal malpractice. As this court recently stated, the rule recognizes that a person seeking professional assistance has a right to repose confidence in the professional s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered (Siegel v Kranis, 29 AD2d 477). (Greene v Greene, 56 NY2d 86, 94.) Neither is a person expected to jeopardize his pending case or his relationship with the attorney handling that case during the period that the attorney continues to represent the person. Since it is impossible to envision a situation where commencing a malpractice suit would not affect the professional relationship, the rule of continuous representation tolls the running of the Statute of Limitations on the malpractice claim until the ongcing 3

4 representation is completed. (McDermott v Torre, supra, at p 407.) the continuous representation rule to toll the Statute of Limitations Because we interpret rather than to delay the point at which the cause of action accrues, its application is limited to situations in which the attorney who allegedly was responsible for the malpractice continues to represent the client in that case. When that relationship ends, for whatever reason, the purpose for applying the continuous representation rule no longer exists. (Glamm v Allen, NY2d 57 87,93-93) As applicable herein, the attorney-client relation ended no later than April 13, 1995, the date on which plaintiff authorized the withdrawal of his appeal. Thus, as the instant action was initiated almost five (5) years after the severance of the attorney-client relationship, the continuing representation exception offers plaintiff no succor., Plaintiffs effort to come within the ambit of the exception grounded upon allegations of fraud and deceit and principles of estoppel is unavailing, as plaintiff has not articulated any specific factual misrepresentation which, in substance or effect, concealed or obscured acts or omissions constituting professional negligence and which induced him to forego or delay the initiation of litigation. (see, Demille v Franklin General Hospital, 107 AD2d 656, affd 65 NY2d 728) Moreover, plaintiff concedes learning of the decedent s alleged unsavory

5 reputation and the resolution of various claims through resort to the Lawyer s Fund for Client Security in March 1977 and admits receiving the underlying trial transcript in August Thus, with months remaining on the statute of limitations plaintiff was confronted with the level and nature of the proof adduced during the course of the trial. Since defendants alleged improper conduct ceased well before the expiration of the governing limitations period, plaintiff may not rely thereon to establish estoppel. (see, Green v Albert, 199 AD2d 465; Fransca v Fransca, 129 AD2d 766; Schroeder v Brooklyn Hospital, 119 AD2d 564, Iv den 68 NY2d 603) The inability of the plaintiff to demonstrate the application of any exception to the governing limitations period mandates the dismissal of plaintiffs malpractice claim, the first cause of action asserted in his amended complaint. Its dismissal triggers the dismissal of the inextricably related remaining causes of action. Though the second cause of action sounds arguably in fraud, in the context presented it, too, is governed by the three (3) year limitations period. (see, Weiss v Manfredi, 83 NY2d 974, reh den 84 NY2d 848; Ainbinder v Chernis, 248 AD2d 337; see, also, Garber v Ravich, 186 AD2d 36 1, Iv den 8 1 NY2d 707) While the remaining cause of action is predicated upon principles o contract law, it is not governed by the six (6) year statute of limitations traditionally applicable to disputes of a contractual nature; rather it is controlled by the three (3) year limitations 5

6 period associated with claims premised on allegations of legal malpractice. (CPLR 214 [6]) The plaintiff, having failed to establish a material triable factual issue in response to the defendants prima facie demonstration (see, Formula Equipment Leasing, Inc. v Interstate Industrial Corp., 245 AD2d 261, Iv den 92 NY2d 804), and having failed to proffer a reasonable explanation for such failure (see, Creekrnore v Good Samaritan Hospital, 240 AD2d 616) may not avoid summary judgment. In responsive papers plaintiff refers to an outstanding Notice for Discovery and Inspection. CPLR 3212 (f) provides, in pertinent part, as follows: Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to pert-nit affidavits to be obtained or disclosure to be had and may make such other order as may be just. However, [a] party who claims ignorance of critical facts to defeat a motion for summary judgment (see, CPLR 3212 [fl) must first demonstrate that the ignorance is unavoidable and that reasonable attempts were made to discover the facts which would give rise to a triable issue (see, Rothbort v S.L.S. Mgt. Corp., 185 AD2d 806; State of New York v Wisser Co., 170 AD2d 918; Kenworthy v Town of Oyster Bay, 116 AD2d 628). (Cruz v Otis Elevator Company, 238 AD2d 540 [emphasis supplied]) Plaintiffs failure to demonstrate the efforts made to discover facts at variance 6

7 with the showing made by the defendants is preclusive. In this regard the Court notes that there is no indication that the plaintiff took any steps to compel compliance or engage in any other pertinent discovery between the date on which the subject Notice was served in June 2000 and the service of the instant cross-motion in November. For the reasons hereinabove articulated the defendants application is granted, and the complaint is dismissed. In light of its disposition, the cross-motion is denied, as academic. This concludes all proceedings under index number 50 1 l/00. Dated: March 12,200l