MARTIN v. CANALE

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

Nancy C. MARTIN, Respondent, v. William V. CANALE, Appellant.

Decided: July 30, 1998

Before:  MIKOLL, J.P., MERCURE, PETERS, SPAIN and CARPINELLO, JJ. Roche, Corrigan, McCoy & Bush (Scott W. Bush of counsel), Albany, for appellant. Catherine A. Burkly, Greenwich, for respondent.

Appeal from an order of the Supreme Court (Dier, J.), entered June 9, 1997 in Washington County, which, inter alia, denied defendant's motion for summary judgment dismissing the complaint.

In late 1986 plaintiff engaged the legal services of defendant for the purpose of defending her in an action for divorce commenced by her husband.   The parties in the divorce proceeding subsequently executed a separation agreement on April 14, 1987 and a judgment of divorce was entered June 22, 1987.   Plaintiff commenced this action on January 22, 1993 alleging negligent representation and breach of contract.   Defendant filed an answer to the complaint and subsequently moved to amend the answer to assert, as an affirmative defense, the Statute of Limitations and for summary judgment dismissing the action because it was time barred.   Supreme Court granted defendant's motion to amend the answer but denied the motion to dismiss, holding that plaintiff's cause of action was timely commenced within the applicable time limit of six years.   Defendant appeals.

 We affirm.   In 1996, the Legislature amended CPLR 214(6) to state that a cause of action for malpractice must be commenced within three years “regardless of whether the underlying theory is based in contract or tort”.   This amendment overruled the holding of the Court of Appeals in Santulli v. Englert, Reilly & McHugh, 78 N.Y.2d 700, 579 N.Y.S.2d 324, 586 N.E.2d 1014, which had applied a six-year Statute of Limitations in legal malpractice actions where the remedy sought is damages relating solely to the plaintiff's pecuniary or property loss arising out of the attorney-client relationship (see, id., at 709, 579 N.Y.S.2d 324, 586 N.E.2d 1014).   The key issue herein distills to whether the amendment to CPLR 214(6) should be applied retroactively.   Generally, a Statute of Limitations will be applied prospectively unless “the statute expressly provided that it should be retroactive” (McKinney's Cons. Laws of N.Y., Book 1, Statutes § 59 comment., at 129;  see, Matter of Pauletti v. Freeport Union Free School Dist. No. 9, 59 A.D.2d 556, 397 N.Y.S.2d 146, affd. 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453).   The amendment in question gives no indication that it was meant to apply retroactively.

 In our view, plaintiff's legal malpractice action, commenced prior to the amendment to CPLR 214(6) (L.1996, ch. 623, § 1), is governed by a six-year limitations period (see, CPLR 213[2];  Santulli v. Englert, Reilly & McHugh, supra;  Sears Roebuck & Co. v. Enco Assocs., 43 N.Y.2d 389, 401 N.Y.S.2d 767, 372 N.E.2d 555).  “The amendment to CPLR 214(6) may not be applied retroactively to claims pending prior to its effective date” (Romeo v. Schmidt, 244 A.D.2d 860, 665 N.Y.S.2d 228, 229;  see, Board of Managers of Ocean Club at Long Beach Condominium v. Mandel, 235 A.D.2d 382, 652 N.Y.S.2d 301).   We agree with the First Department's determination in Ruffolo v. Garbarini & Scher, 239 A.D.2d 8, 668 N.Y.S.2d 169, that the “application of the amendment to CPLR 214(6) so as to render this action, timely when commenced, time barred by virtue of retroactive application of the amendment is impermissible” (Ruffolo v. Garbarini & Scher, 239 A.D.2d 8, 12, 668 N.Y.S.2d 169, supra ).   Notably, there is already ample precedent in support of this view (see, id., at 12, 668 N.Y.S.2d 169;  see also, White of Lake George v. Bell, 173 Misc.2d 423, 427-428, 662 N.Y.S.2d 362, affd. 251 A.D.2d 777, 674 N.Y.S.2d 162), and we find no support in the legislative history for the conclusion that the CPLR 214(6), as amended, should apply retroactively.

We have examined defendant's remaining contentions and find them to be without merit.

ORDERED that the order is affirmed, without costs.

SPAIN, Justice.

MIKOLL, J.P., and MERCURE, PETERS and CARPINELLO, JJ., concur.

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