GRAVEL v. CICOLA (2002)

In an action to recover damages for legal malpractice, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated July 5, 2001, as denied that branch of his motion which was to dismiss the complaint as time-barred pursuant to CPLR 3211(a)(5).

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was to dismiss the complaint as time-barred on the ground that the applicable three-year statute of limitations was tolled by the defendant's ongoing representation of the plaintiffs, and substituting therefor a provision denying that branch of the motion on the ground that there are triable issues of fact regarding whether the statute of limitations was tolled by the defendant's ongoing representation of the plaintiffs;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

 A defendant who seeks dismissal of a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired (see Duran v. Mendez, 277 A.D.2d 348, 716 N.Y.S.2d 595;  Savarese v. Shatz, 273 A.D.2d 219, 220, 708 N.Y.S.2d 642;  Assad v. City of New York, 238 A.D.2d 456, 656 N.Y.S.2d 669;  Siegel v. Wank, 183 A.D.2d 158, 159, 589 N.Y.S.2d 934).   Here, the defendant sustained this initial burden by offering evidentiary proof that the malpractice complained of occurred on February 18, 1997, when he allegedly erroneously advised the plaintiffs that the property they intended to purchase was benefited by an easement, and that this action was not commenced until on or about October 18, 2000, after the expiration of the three-year limitations period (see CPLR 214 [6] ).   The burden thus shifted to the plaintiffs to aver evidentiary facts establishing that their cause of action falls within an exception to the statute of limitations, or to raise an issue of fact as to whether such an exception applies (see Duran v. Mendez, supra;  Assad v. City of New York, supra;  Siegel v. Wank, supra ).   Contrary to the defendant's contention, the evidentiary facts submitted by the plaintiffs were sufficient to raise an issue of fact as to whether the statute of limitations was tolled by the doctrine of continuous representation because the defendant was performing services in an attempt to rectify the alleged act of malpractice (see Pellati v. Lite & Lite, 290 A.D.2d 544, 545, 736 N.Y.S.2d 419;  Kuritzky v. Sirlin & Sirlin, 231 A.D.2d 607, 647 N.Y.S.2d 806;  Luk Lamellen U. Kupplungbau GmbH v. Lerner, 166 A.D.2d 505, 506-507, 560 N.Y.S.2d 787;  Stampfel v. Eckhardt, 143 A.D.2d 184, 531 N.Y.S.2d 814).

 However, it was premature for the Supreme Court to determine, as a matter of law, that the continuous representation toll applies.   A legal malpractice claim may be tolled by that doctrine only where “the continuing representation pertains specifically to the matter in which the attorney committed the alleged malpractice” (Shumsky v. Eisenstein, 96 N.Y.2d 164, 168, 726 N.Y.S.2d 365, 750 N.E.2d 67).   The record discloses a factual dispute as to whether the additional services rendered by the defendant between January 14, 1999, and December 16, 1999, constituted an attempt to rectify the alleged malpractice by establishing the validity of the easement which the plaintiffs believed was included in their purchase of the subject property, or whether the services were connected to the plaintiffs' attempt to secure an expanded easement, and thus did not directly arise out of the original real estate transaction.   Because there are factual issues to be resolved regarding whether the continuous representation toll applies, the Supreme Court erred in denying the motion on the ground that, as a matter of law, the three-year statute of limitations was tolled.