MIGNOTT v. Kreidman & Slater, Defendant. (2009)

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered March 24, 2005, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Defendant attorneys were not negligent for failing to anticipate an appellate development (see Darby & Darby v. VSI Intl., 95 N.Y.2d 308 [2000]; Gabrielli v. Dobson & Pinci, 51 AD3d 571, 572 [2008] ). Although their position was later rejected in Baez v. New York City Health & Hosps. Corp. (80 N.Y.2d 571 [1992] ) and on appeal in the underlying medical malpractice action (Mignott v. New York City Health & Hosps. Corp., 250 A.D.2d 165 [1998], lv denied 93 N.Y.2d 807 [1999] ), defendants were not negligent in assuming at the time of their representation that the statute of limitations was tolled pending a General Municipal Law § 50-h examination, since the only analogous authority at the time supported their understanding (see Serravillo v. New York City Tr. Auth., 51 A.D.2d 1027 [1976], affd 42 N.Y.2d 918 [1977] ). The inapposite authorities relied upon by plaintiff to demonstrate the attorneys acted unreasonably involved municipalities, not public authorities or public benefit corporations, where the governing statute contained an express provision that the pendency of a § 50-h examination did not toll or extend the limitations period. Plaintiff's contract cause of action, based on the same facts and seeking the same damages as the insufficient malpractice claim, was duplicative (see Rivas v. Raymond Schwartzberg & Assoc., LLC, 52 AD3d 401 [2008]; Turk v. Angel, 293 A.D.2d 284 [2002], lv denied 100 N.Y.2d 510 [2003] ).

In view of the foregoing, it is unnecessary to address plaintiff's contention that there was an issue of fact as to whether defendants' alleged negligence was the “but for” cause of her loss.