DAVIS v. KUTTNER LAW OFFICES KUTTNER AFFILIATES (1999)

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered on or about November 12, 1997, which, inter alia, denied the motion of defendants-appellants to dismiss the complaint against them on statute of limitations grounds, unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint as against them.

 Plaintiff's claim for legal malpractice, which was grounded in the alleged failure of his attorneys to advise him that he had negligence and Labor Law claims based on a workplace accident in addition to workers' compensation claims, accrued when he suffered damage, i.e., when the Statutes of Limitations ran on his own claims in February of 1992 (see, Glamm v. Allen, 57 N.Y.2d 87, 93, 453 N.Y.S.2d 674, 439 N.E.2d 390;  Goicoechea v. Law Offices of Stephen R. Kihl, 234 A.D.2d 507, 651 N.Y.S.2d 198).   This action for malpractice was initiated in 1994, but defendants-appellants were not named as defendants until February 3, 1997.

At the time plaintiff's claim accrued, the rule set forth in Santulli v. Englert, Reilly & McHugh, P.C., 78 N.Y.2d 700, 579 N.Y.S.2d 324, 586 N.E.2d 1014 was in effect, whereby causes of action for legal malpractice grounded in contract were governed by the six-year statute of limitations set forth in CPLR 213(2).   While Santulli has since been legislatively overruled by amendments to CPLR 214(6), which brought all non-medical malpractice actions within the three-year period of limitations regardless of legal theory, plaintiff argues that due process requires that he not be deprived of a claim that, but for the statute's revision, would have been timely.

 However, as this court held in Greenwich v. Markhoff, 234 A.D.2d 112, 650 N.Y.S.2d 704, which involved a virtually identical legal malpractice claim, even under Santulli, the Statute of Limitations applicable to plaintiff's cause of action, by way of which he sought damages for loss of an underlying claim based in personal injury, was the three-year Statute of Limitations set forth in CPLR 214(6) (cf., Ruffolo v. Garbarini & Scher, 239 A.D.2d 8, 668 N.Y.S.2d 169).   The action against defendant-appellant was, therefore, untimely.

MEMORANDUM DECISION.