ROMEO v. SCHMIDT (1997)

 Supreme Court properly denied that part of plaintiffs' motion for summary judgment dismissing defendants' counterclaims for legal malpractice.   Because those counterclaims were interposed in May 1995, they are not barred by the amendment to CPLR 214(6), effective September 4, 1996 (L.1996, ch. 623), which reduces the Statute of Limitations for claims of legal malpractice from six years to three years.   The amendment to CPLR 214(6) may not be applied retroactively to claims pending prior to its effective date (see, Board of Managers of Ocean Club at Long Beach Condominium v. Mandel,235 A.D.2d 382, 652 N.Y.S.2d 301;  Matter of Moynihan v. New York State Employees' Retirement Sys., 192 A.D.2d 913, 914, 596 N.Y.S.2d 570).   In any event, the continuous representation doctrine would toll the Statute of Limitations applicable to the counterclaims (see, Greene v. Greene, 56 N.Y.2d 86, 95, 451 N.Y.S.2d 46, 436 N.E.2d 496;  Schlanger v. Flaton, 218 A.D.2d 597, 603, 631 N.Y.S.2d 293, lv. denied 87 N.Y.2d 812, 644 N.Y.S.2d 145, 666 N.E.2d 1059).   On the merits, we conclude that the court properly determined that there are numerous triable issues of fact (see, Rende & Esposito Consultants v. St. Augustine's R.C. Church, 131 A.D.2d 740, 743, 516 N.Y.S.2d 959).   Whether malpractice has been committed is normally a factual determination to be made by a jury (see, Corley v. Miller, 133 A.D.2d 732, 735, 520 N.Y.S.2d 21).   In addition, the court did not err in denying that part of plaintiffs' motion to dismiss the 13th counterclaim for recovery of a nonrefundable retainer fee.   The language of the agreement is ambiguous, and there are triable issues of fact with respect to its validity (see, Matter of Cooperman, 83 N.Y.2d 465, 611 N.Y.S.2d 465, 633 N.E.2d 1069).

Order unanimously affirmed with costs.

MEMORANDUM: