MOSS v. McKELVEY

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Supreme Court, Appellate Division, Fourth Department, New York.

Barry MOSS and Eva Moss, Plaintiffs-Appellants, v. Thomas H. McKELVEY, James J. Pelletter and Pelletter & McKelvey, Defendants-Respondents.  (Appeal No. 1.)

Decided: September 29, 2006

PRESENT:  HURLBUTT, J.P., GORSKI, MARTOCHE, AND PINE, JJ. Christopher A. Spence, P.C., Buffalo (Christopher A. Spence of Counsel), for Plaintiffs-Appellants. Brown Chiari LLP, Lancaster (Michael R. Drumm of Counsel), for Defendants-Respondents.

Plaintiffs commenced this action alleging that defendants committed various acts of legal malpractice in their joint representation of both the buyer and the seller in a real estate transaction.   In appeal No. 1, plaintiffs appeal from an order granting defendants' motion to vacate plaintiffs' note of issue and certificate of readiness for trial and denying without prejudice plaintiffs' motion for summary judgment on liability and damages or, in the alternative, for partial summary judgment on liability.   In appeal No. 2, defendants appeal from an order granting plaintiffs' motion for leave to renew with respect to plaintiffs' motion in appeal No. 1 and, upon renewal, granting plaintiffs' motion insofar as it sought partial summary judgment on liability.

 Addressing first the order in appeal No. 2, we conclude that Supreme Court erred in granting plaintiffs' motion for leave to renew inasmuch as plaintiffs failed to submit the requisite “new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2];  see Boreanaz v. Facer-Kreidler, 2 A.D.3d 1481, 1482, 770 N.Y.S.2d 516).   We therefore reverse the order in appeal No. 2 and address the merits of the order in appeal No. 1 (see generally Brookview Homeowners' Assn. v. Mark IV Constr. Co., 178 A.D.2d 967, 579 N.Y.S.2d 776).

 We conclude that the court properly granted defendants' motion in appeal No. 1 because the record establishes that defendants' recently-retained attorney had told plaintiffs' attorney that he wished to depose plaintiffs prior to the filing of the note of issue and certificate of readiness (see 22 NYCRR 202.21[e];  see generally Simon v. City of Syracuse Police Dept., 13 A.D.3d 1228, 787 N.Y.S.2d 577, lv. dismissed 5 N.Y.3d 746, 800 N.Y.S.2d 375, 833 N.E.2d 710;  Shoop v. Augst, 305 A.D.2d 1016, 1017-1018, 758 N.Y.S.2d 747;  Aviles v. 938 SCY, 283 A.D.2d 935, 725 N.Y.S.2d 256).   The court also properly denied plaintiffs' motion for summary judgment because there is an issue of fact with respect to defendants' affirmative defense of the statute of limitations (see generally Tavernier v. Toner, 159 A.D.2d 1011, 555 N.Y.S.2d 638).   Although plaintiffs' claims against defendants accrued when the alleged malpractice was committed (see McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714;  Kanter v. Pieri, 11 A.D.3d 912, 912-913, 783 N.Y.S.2d 181), the three-year statute of limitations for legal malpractice set forth in CPLR 214(6) would be tolled if the continuous representation doctrine were to apply (see Kanter, 11 A.D.3d at 913, 783 N.Y.S.2d 181).   In that event, the statute of limitations would begin to run either upon formal severance of the representation on this matter or when the continuous representation doctrine ceased to apply (see Aaron v. Roemer, Wallens & Mineaux, 272 A.D.2d 752, 754-755, 707 N.Y.S.2d 711, lv. dismissed 96 N.Y.2d 730, 722 N.Y.S.2d 796, 745 N.E.2d 1018;  Pittelli v. Schulman, 128 A.D.2d 600, 601, 512 N.Y.S.2d 860;  see generally Coyne v. Bersani, 61 N.Y.2d 939, 940, 474 N.Y.S.2d 970, 463 N.E.2d 371). Because plaintiffs failed to establish as a matter of law that the statute of limitations had not expired, they are not entitled to summary judgment (see generally Tavernier, 159 A.D.2d 1011, 555 N.Y.S.2d 638).

 Plaintiffs' additional contentions with respect to defendants' motion papers and plaintiffs' demand for attorney's fees and costs are not properly before us because they are raised for the first time on appeal (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745) and, in any event, those contentions are without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: