BARBIERI v. SHAYNE DACHS STANISI CORKER SAUER (2003)

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Alpert, J.), dated March 12, 2001, which, inter alia, granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(5).

ORDERED that the order is affirmed, with costs.

 An action to recover damages for legal malpractice must be commenced within three years of the accrual of the claim (see CPLR 214(6);  Carnevali v. Herman, 293 A.D.2d 698, 742 N.Y.S.2d 85), and such a claim accrues when the malpractice is committed, not when it is discovered (see Santulli v. Englert, Reilly & McHugh, 78 N.Y.2d 700, 579 N.Y.S.2d 324, 586 N.E.2d 1014).   Here, the act of malpractice would have occurred during the underlying civil trial which ended on January 23, 1995.   Contrary to the plaintiff's contention, absent any applicable tolling provisions, he had three years from January 23, 1995, to commence a timely action (see generally Brothers v. Florence, 95 N.Y.2d 290, 716 N.Y.S.2d 367, 739 N.E.2d 733).   The Supreme Court properly concluded that neither the doctrines of continuous representation (see Shumsky v. Eisenstein, 96 N.Y.2d 164, 726 N.Y.S.2d 365, 750 N.E.2d 67;  Pellati v. Lite & Lite, 290 A.D.2d 544, 736 N.Y.S.2d 419) nor estoppel (see Simcuski v. Saeli, 44 N.Y.2d 442, 406 N.Y.S.2d 259, 377 N.E.2d 713;  Julian v. Carroll, 270 A.D.2d 457, 704 N.Y.S.2d 654), tolled the statute of limitations to the extent necessary to render the commencement of this action timely (see Daniels v. Lebit, 299 A.D.2d 310, 749 N.Y.S.2d 149).   Accordingly, the defendant's motion to dismiss was properly granted (see Gravel v. Cicola, 297 A.D.2d 620, 747 N.Y.S.2d 33).

The plaintiff's remaining contentions are academic in light of our determination herein.