NATH v. CHEMTOB MOSS FORMAN BEYDA LLP (2024)

Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered on or about December 27, 2023, which denied defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), (7), and (8), unanimously affirmed, without costs.

Defendants represented plaintiff in a divorce proceeding in New York. She now alleges that defendants committed legal malpractice by failing to advise her to file for divorce in California, which distributes property in a manner that she alleges would have been more favorable to her.  She further alleges that California had jurisdiction for commencement of a divorce on the basis of numerous documents showing that her then-husband's main address was in San Francisco.  At the motion to dismiss stage, pursuant to CPLR 3211(a)(7) (see generally Lieberman v. Green, 139 A.D.3d 815, 816, 32 N.Y.S.3d 239 [2d Dept. 2016]), these allegations sufficiently state that defendants “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” and that their failure caused plaintiff to suffer “actual and ascertainable damages” (id. at 816–817, 32 N.Y.S.3d 239 [internal quotation marks omitted];  see Escape Airports [USA], Inc. v. Kent, Beatty & Gordon, LLP, 79 A.D.3d 437, 438, 913 N.Y.S.2d 47 [1st Dept. 2010]).

In considering defendants' motion pursuant to CPLR 3211(a)(1), we may consider plaintiff's own affidavit from the prior divorce proceeding (see Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Longmire, 106 A.D.3d 536, 537, 965 N.Y.S.2d 458 [1st Dept. 2013], lv dismissed 21 N.Y.3d 1059, 974 N.Y.S.2d 28, 996 N.E.2d 909 [2013], lv denied 33 N.Y.3d 914, 2019 WL 4383898 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2510, 206 L.Ed.2d 464 [2020]).  This affidavit, which detailed the husband's whereabouts for almost a year before plaintiff retained defendants, averred the former husband to have a consistent (if irregular) presence in San Francisco since early 2019.  It also states that documents showed his main address to be in San Francisco since 2018.  These assertions do not contradict the allegations in the complaint.  In sum, defendants' evidence “does not conclusively establish a defense to the asserted claims as a matter of law” (Correa v. Orient–Express Hotels, Inc., 84 A.D.3d 651, 651, 924 N.Y.S.2d 336 [1st Dept. 2011] [internal brackets and quotation marks omitted]).

Plaintiff further alleges that defendants failed to introduce competent evidence in their possession to support her claim for exclusive occupancy of the marital residence, and that they failed to request maintenance and legal fees.  Contrary to defendants' contention that these allegations are conclusory, they are sufficient to survive dismissal (see Lieberman, 139 A.D.3d at 816–817, 32 N.Y.S.3d 239;  Escape Airports, 79 A.D.3d at 438, 913 N.Y.S.2d 47).

Plaintiff's claims are not time-barred.  So much of the claims as allege that defendants failed to request maintenance and legal fees in the divorce action accrued on December 23, 2019, when the divorce court granted defendants' motion to withdraw as plaintiff's counsel.  Since plaintiff commenced the instant action on December 15, 2022, this branch of her malpractice claim is timely.

Plaintiff's claim that defendants should have advised her to bring suit in California accrued at the earliest on September 11, 2019.  Her claim that they should have introduced evidence to support her motion for exclusive occupancy of the marital residence accrued on November 14, 2019, when the divorce court denied that motion.  The continuous representation doctrine does not extend beyond November 27, 2019, when defendants informed plaintiff that they could no longer represent her (see Ellison v. Seltzer, 209 A.D.3d 522, 522, 175 N.Y.S.3d 215 [1st Dept. 2022];  RJR Mech. Inc. v. Ruvoldt, 170 A.D.3d 515, 93 N.Y.S.3d 851 [1st Dept. 2019]).  COVID tolling, however, renders these claims timely (see Murphy v. Harris, 210 A.D.3d 410, 411, 177 N.Y.S.3d 559 [1st Dept. 2022]).

Defendants contend that the court should have dismissed this action because plaintiff failed to serve the complaint within 20 days after service of their demand for a complaint (see CPLR 3012[b]).  Plaintiff submitted medical evidence of an ongoing illness that impeded her ability to participate in the litigation (compare Elkaim v. Lotte N.Y. Palace Hotel, 193 A.D.3d 566, 567, 142 N.Y.S.3d 804 [1st Dept. 2021] [“Plaintiff's claim that an ongoing illness impeded her filing of a complaint is unsupported by any evidentiary showing, including a medical affidavit”]).  Given the brevity of the delay, the lack of evident intention to abandon the suit, and the absence of prejudice to defendants, Supreme Court did not abuse its discretion in finding this illness to be a reasonable excuse (see Aquilar v. Nassau Health Care Corp., 40 A.D.3d 788, 789, 836 N.Y.S.2d 649 [2d Dept. 2007];  Rose v. Our Lady of Mercy Med. Ctr., 268 A.D.2d 225, 226, 700 N.Y.S.2d 467 [1st Dept. 2000]).  Neither did it do so in finding plaintiff's verified complaint to show a meritorious claim (see Stevens v. Stevens, 165 A.D.2d 780, 781–782, 564 N.Y.S.2d 47 [1st Dept. 1990]).

As for defendants' contention that they were not properly served with the summons, we find that the individual defendant – a partner of the defendant law firm – was properly served, and thus the law firm was also properly served (see Green v. Gross & Levin, LLP, 101 A.D.3d 1079, 1080, 958 N.Y.S.2d 399 [2d Dept. 2012]).  While plaintiff's process server did not reach the individual defendant's “actual place of business” (CPLR 308[2]), because the building where defendants are located did not allow the process server to go to defendant firm's floor, the building's concierge told the process server to deliver the summons to the “Building Mailroom Clerk.”  Under these circumstances “the outer bounds” of the individual defendant's actual place of business should “be deemed to extend to the location at which the process server's progress [was] arrested” (F.I. duPont, Glore Forgan & Co. v. Chen, 41 N.Y.2d 794, 797, 396 N.Y.S.2d 343, 364 N.E.2d 1115 [1977]).  Defendants' remaining arguments on this issue are unavailing.