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GARY M. DISCHIAVI AND LINDA DISCHIAVI, PLAINTIFFS–RESPONDENTS -APPELLANTS, v. WILLIAM S. CALLI, JR., AS ADMINISTRATOR CTA OF THE ESTATE OF WILLIAM S. CALLI, ROBERT CALLI, HERBERT CULLY, CALLI, CALLI AND CULLY, ANDREW S. KOWALCZYK, JOSEPH STEPHEN DEERY, JR., THOMAS S. SOJA AND CALLI, KOWALCZYK, TOLLES, DEERY AND SOJA, DEFENDANTS–APPELLANTS -RESPONDENTS, ET AL., DEFENDANTS.
MEMORANDUM AND ORDER
Appeals and cross appeal from an order of the Supreme Court, Oneida County (James P. McClusky, J.), entered May 21, 2012. The order, inter alia, dismissed plaintiffs' legal malpractice causes of action insofar as they are premised on the failure to commence a personal injury action and dismissed plaintiffs' legal malpractice causes of action against defendants Herbert Cully and Calli, Calli and Cully insofar as they are premised on the failure of those defendants to commence a medical malpractice action.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting those parts of the motions of defendants-appellants-respondents with respect to the third cause of action in its entirety and those parts of the motions of all defendants-appellants-respondents except Robert Calli with respect to the claim for punitive damages against them, and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for, inter alia, breach of contract, legal malpractice and fraud, alleging, among other things, that defendants failed to commence timely legal actions to recover damages arising from injuries sustained by Gary M. Dischiavi (plaintiff). Plaintiffs allege in their complaint that plaintiff was injured as the result of an accident that occurred while he was on duty as a City of Utica police officer in 1991, and that he was further injured as a result of his ensuing medical treatment. Although plaintiffs retained defendant law firm of Calli, Kowalczyk, Tolles, Deery and Soja (CKTDS) to represent them with respect to possible claims arising from those injuries, no action was ever instituted. Plaintiffs further allege that defendants purported to have plaintiff examined by an expert physician but had a lawyer examine him instead, purported to have other expert physicians review plaintiff's medical records but had a veterinarian perform that review, misrepresented that they had commenced a personal injury action on plaintiffs' behalf, and created a fake settlement agreement for that “action.” This case was previously before us on appeal, and we determined, inter alia, that Supreme Court erred in granting the motions and cross motion of various defendants for summary judgment dismissing the complaint in its entirety against them (Dischiavi v. Calli [appeal No. 2], 68 AD3d 1691, 1692–1694).
In addition, the CKTDS defendants and defendant Thomas S. Soja contend that they may not be held liable under a theory of partnership by estoppel because CKTDS was dissolved prior to any alleged legal malpractice. Even assuming, arguendo, that those defendants met their initial burden in that respect, we further conclude that the court properly determined that plaintiffs raised a triable issue of fact with respect to that issue (see generally id.).
To the extent that defendants sought summary judgment dismissing the first and second causes of action on the ground that the applicable three-year statute of limitations had expired prior to the commencement of this action (see CPLR 214[6]; see generally Zorn v. Gilbert, 8 NY3d 933, 933–934), we conclude that they met their initial burden on their respective motions. We further conclude, however, that plaintiffs raised a triable issue of fact whether the doctrine of continuous representation tolled the statute of limitations (see generally Shumsky v. Eisenstein, 96 N.Y.2d 164, 167–168). The court therefore properly determined that defendants were not entitled to the relief sought based on the statute of limitations.
We agree with all defendants that the court erred in denying those parts of their motions seeking summary judgment dismissing the third cause of action, for fraud, against them. Thus, we modify the order accordingly. “The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff[s] and damages” (Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 559; see Ross v. Louise Wise Servs., Inc., 8 NY3d 478, 488; Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421). “Where, as here, a fraud [cause of action] is asserted in connection with charges of professional malpractice, it is sustainable only to the extent that it is premised upon one or more affirmative, intentional misrepresentations ․ which have caused additional damages, separate and distinct from those generated by the alleged malpractice” (White of Lake George v. Bell, 251 A.D.2d 777, 778, lv dismissed 92 N.Y.2d 947; see Tasseff v. Nussbaumer & Clarke, 298 A.D.2d 877, 878; see generally Wells Fargo Bank, N.A. v Zahran, 100 AD3d 1549, 1550, lv denied 20 NY3d 861). We agree with defendants that they met their initial burden on their motions by establishing that plaintiffs did not sustain any additional damages as a result of the alleged fraud, and plaintiffs failed to raise a triable issue of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324–325). Contrary to plaintiffs' contention, this Court's prior order denying those parts of the respective defendants' initial motions and cross motions “pursuant to CPLR 3211(a)(7) to dismiss the complaint, which w[ere] addressed to the sufficiency of the pleadings, did not establish the law of the case for the purpose of their subsequent motion[s] pursuant to CPLR 3212 for summary judgment, which [were] addressed to the sufficiency of the evidence” (Thompson v. Lamprecht Transp., 39 AD3d 846, 847).
We have considered the further contentions of the parties and conclude that they are without merit.
Frances E. Cafarell
Clerk of the Court
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Docket No: CA 13–00374
Decided: November 08, 2013
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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