DILL v. RUSSO GARGUILO FOX (1999)

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated October 15, 1998, which granted the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(5) and (a)(7).

ORDERED that the order is affirmed, with costs.

 In this action commenced in 1998, the plaintiff alleges, inter alia, that the defendants committed legal malpractice in their representation of him in a sale of real property, which resulted in his conviction of a felony.   The complaint failed to adequately plead the continuous representation of the plaintiff by the defendants, and thus the cause of action for alleged malpractice committed in connection with the July 31, 1987, closing was time-barred (see, Garden City Imaging Ctr. v. Lawrence & Walsh, 234 A.D.2d 414, 651 N.Y.S.2d 569).   Moreover, the causes of action alleging negligent advice during the course of the criminal proceeding were properly dismissed because, as a matter of public policy, a legal malpractice action arising from an allegation of negligent representation in a criminal proceeding cannot be maintained by a plaintiff who cannot assert his or her innocence (see, Carmel v. Lunney, 70 N.Y.2d 169, 518 N.Y.S.2d 605, 511 N.E.2d 1126;  Gill v. Blau, 234 A.D.2d 506, 651 N.Y.S.2d 182), and in this action, the adjudication of the plaintiff's guilt remains undisturbed.

MEMORANDUM BY THE COURT.