Robert Potenza, appellant, v. Joseph O. Giaimo, et al., respondents.

Reset A A Font size: Print

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

Robert Potenza, appellant, v. Joseph O. Giaimo, et al., respondents.

2016–03926

Decided: October 24, 2018

ALAN D. SCHEINKMAN, P.J. SHERI S. ROMAN SANDRA L. SGROI JOSEPH J. MALTESE, JJ. Kreinces & Rosenberg, P.C., Westbury, N.Y. (Leonard Kreinces and Howard S. Rosenberg of counsel), for appellant.

Submitted—April 10, 2018

DECISION & ORDER

ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.

The statute of limitations for causes of action alleging legal malpractice is three years (see CPLR 214[6];  Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735).  A cause of action to recover damages for legal malpractice accrues when the malpractice is committed (see Shumsky v. Eisenstein, 96 N.Y.2d 164, 166).  However, pursuant to the doctrine of continuous representation, the limitations period is tolled until the attorney's continuing representation of the client with regard to the particular matter terminates (see Shumsky v. Eisenstein, 96 N.Y.2d at 167–168;  Aqua–Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 144 AD3d 956, 957).  For the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” (Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 A.D.2d 505, 506–507).

Here, the defendants satisfied their initial burden by demonstrating, prima facie, that the alleged legal malpractice occurred more than three years before this action was commenced in 2014.  In opposition, the plaintiff failed to raise a triable issue of fact as to whether the applicable statute of limitations was tolled by the continuous representation doctrine.  Accordingly, we agree with the Supreme Court's determination dismissing the plaintiff's legal malpractice causes of action as untimely.

Further, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging fraudulent misrepresentation and a violation of Judiciary Law § 487 (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851).  In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320).

In light of our determination, the issue of disqualification is academic.

SCHEINKMAN, P.J., ROMAN, SGROI and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court