MARZARIO v. SNITOW KANFER HOLZER MILLUS LLP (2019)

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered May 29, 2018, which granted defendants' motions to dismiss the complaint on statute of limitations grounds, unanimously affirmed, without costs.

An action to recover damages arising from an attorney's malpractice must be commenced within three years of accrual (McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002], citing CPLR 214[6]), and the claim accrues when the malpractice is committed (Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001]).

Here, the acts of alleged malpractice are errors in drafting the underlying complaint, failure to include Collision Capital as a plaintiff, and poor representation and advice during a settlement meeting.  The complaint in the underlying lawsuit was filed on August 11, 2011.  Plaintiffs allege they unsuccessfully asked defendants to add Collision Capital as a plaintiff sometime prior to April 2012.  The settlement meeting at issue took place on August 6, 2013.  Accordingly, it is submitted that any alleged malpractice here would have occurred, at the latest, on or before August 6, 2013.  As the complaint was not filed until March 23, 2017, defendants made a prima facie showing the case was time-barred.

The trial court appropriately determined that plaintiffs failed to show the continuous representation doctrine, which would have tolled the statute of limitations, applied, or that there was an issue of fact with respect thereto (860 Fifth Avenue Corp v. Superstructures–Engrs. & Architects, 15 A.D.3d 213, 790 N.Y.S.2d 12 [1st Dept. 2005]).

The court reasonably determined the period of continuous representation ended, and the limitations period began to run, at the latest, on March 6, 2014, when plaintiff Marzario told defendant Millus to turn over PPL's files.  The court reasonably construed this communication as Marzario's acknowledgment that he no longer had trust or confidence in the attorney-client relationship, and accordingly deemed the relationship, and any toll on the limitations period, terminated as of then (see Farage v. Ehrenberg, 124 A.D.3d 159, 996 N.Y.S.2d 646 [2d Dept. 2014], lv denied 25 N.Y.3d 906, 2015 WL 3620265 [2015];  Aseel v. Jonathan E. Kroll & Assoc., PLLC, 106 A.D.3d 1037, 966 N.Y.S.2d 202 [2d Dept. 2013]).

We have considered plaintiffs' remaining arguments and find them unavailing.