DANIEL ELSTEIN HILTON ENTERPRISES INC AND TRASON HILTON LLC PLAINTIFFS APPELLANTS v. PHILLIPS LYTLE LLP ALBERT MERCURY DEFENDANTS RESPONDENTS AND ALFRED SPAZIANO DEFENDANT

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

DANIEL ELSTEIN, HILTON ENTERPRISES, INC., AND TRASON HILTON, LLC, PLAINTIFFS–APPELLANTS, v. PHILLIPS LYTLE, LLP, ALBERT M. MERCURY, DEFENDANTS–RESPONDENTS, AND ALFRED D. SPAZIANO, DEFENDANT.

CA 12–02238

Decided: July 05, 2013

PRESENT:  SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ. DAVIDSON FINK, LLP, ROCHESTER (DAVID L. RASMUSSEN OF COUNSEL), FOR PLAINTIFFS–APPELLANTS. CONNORS & VILARDO, LLP, BUFFALO (LAWRENCE J. VILARDO OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.

MEMORANDUM AND ORDER

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

Memorandum:  In this legal malpractice action, plaintiffs appeal from an order granting the motion of Phillips Lytle, LLP and Albert M. Mercury (defendants) seeking dismissal of the complaint against them as time-barred.   Plaintiffs contend that Supreme Court erred in determining the accrual date of their action, for legal malpractice.   We reject that contention.  “ ‘A cause of action for legal malpractice accrues when the malpractice is committed’ “ (Amendola v. Kendzia, 17 AD3d 1105, 1108;  see Glamm v. Allen, 57 N.Y.2d 87, 93).  “In most cases, this accrual time is measured from the day an actionable injury occurs, ‘even if the aggrieved party is then ignorant of the wrong or injury’ “ (McCoy v. Feinman, 99 N.Y.2d 295, 301, quoting Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541).  “ ‘What is important is when the malpractice was committed, not when the client discovered it’ “ (id., quoting Shumsky v. Eisenstein, 96 N.Y.2d 164, 166).   Here, the alleged malpractice occurred no later than 2003, when plaintiff Daniel Elstein completed his acquisition of plaintiff Hilton Enterprises, Inc. (Hilton) from defendant Alfred D. Spaziano.   Indeed, there is no indication in the record that defendants represented plaintiffs after that date.   This action was not commenced until approximately eight years later, on March 4, 2011, and is thus time-barred under the applicable three-year statute of limitations (see CPLR 214[6] ).

We reject plaintiffs' contention that they were unable to sue defendants for malpractice until March 7, 2008, when the judgment was entered against Hilton, inasmuch as that is when they sustained an actionable injury.   As the Court of Appeals has made clear, a malpractice claim becomes actionable when the plaintiff's damages become “sufficiently calculable” (McCoy, 99 N.Y.2d at 305;  see Ackerman, 84 N.Y.2d at 541–542), and, here, plaintiffs' damages arising from the alleged legal malpractice were sufficiently calculable in January 2007, when plaintiffs learned of the alleged malpractice, if not sooner.

Frances E. Cafarell

Clerk of the Court