Sclafani v. Kahn

169 A.D.3d 846

94 N.Y.S.3d 118

Joseph SCLAFANI, et al., appellants,

v.Paul B. KAHN, et al., respondents.

2015-10926

2016-01405

2016-11329

Index No. 30285/15

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

Argued—October 1, 2018

February 13, 2019

Sidney Baumgarten, New York, NY, for appellants.

Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Matthew K. Flanagan and Jessica L. Smith of counsel), for respondents Paul B. Kahn and Kahn & Licker, LLP.

Steinberg & Cavaliere, LLP, White Plains, N.Y. (Ronald W. Weiner of counsel, White Plains), for respondent Diversified Land Services, Ltd.

SHERI S. ROMAN, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal from (1) an order of the Supreme Court, Rockland County (Thomas E. Walsh, II, J.), dated October 29, 2015, (2) a judgment of the same court entered November 30, 2015, and (3) a judgment of the same court entered January 15, 2016. The order granted the motion of the defendants Paul B. Kahn and Kahn & Licker, LLP, and the separate motion of the defendant Diversified Land Services, Ltd., pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. The judgment entered November 30, 2015, is in favor of the defendants Paul B. Kahn and Kahn & Licker, LLP, and against the plaintiffs dismissing the complaint insofar as asserted against those defendants. The judgment entered January 15, 2016, is in favor of the defendant Diversified Land Services, Ltd., and against the plaintiffs dismissing the complaint insofar as asserted against that defendant.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment entered November 30, 2015, is affirmed; and it is further,

ORDERED that the judgment entered January 15, 2016, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendants appearing separately and filing separate briefs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgments in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeals from the judgments (see Matter of Grossbarth v. Dankner, Milstein & Ruffo, P.C. , 157 A.D.3d 681, 68 N.Y.S.3d 528 ).

In January 2015, the plaintiffs commenced this action, inter alia, to recover damages for legal malpractice allegedly committed by the defendants at the closing of a loan on June 24, 2009. The defendants represented the plaintiffs at the closing, and the plaintiffs alleged that, as part of that transaction, the defendants were supposed to, but did not, negotiate security from the borrower for the loan by obtaining a mortgage against certain real property located in Orangeburg.

The defendants Paul B. Kahn and Kahn & Licker, LLP, moved, and the defendant Diversified Land Services, Ltd., separately moved, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. The defendants argued, inter alia, that the complaint was barred by the applicable statute of limitations. In opposition, the plaintiffs argued that the continuous representation doctrine applied to toll the applicable statute of limitations. The Supreme Court granted the defendants' respective motions, and the plaintiffs appeal.

" ‘On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, a defendant must establish, prima facie, that the time within which to sue has expired. Once that showing has been made, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period’ " ( Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d 1085, 1085–1086, 30 N.Y.S.3d 288, quoting Tsafatinos v. Law Off. of Sanford F. Young, P.C. , 121 A.D.3d 969, 969, 995 N.Y.S.2d 509 ; see Alizio v. Ruskin Moscou Faltischek, P.C. , 126 A.D.3d 733, 734–735, 5 N.Y.S.3d 252 ; Landow v. Snow Becker Krauss, P.C. , 111 A.D.3d 795, 796, 975 N.Y.S.2d 119 ). An action to recover damages for legal malpractice must be commenced within three years of accrual, "regardless of whether the underlying theory is based in contract or tort" ( CPLR 214[6] ; see McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 ; Chase Scientific Research v. NIA Group, 96 N.Y.2d 20, 725 N.Y.S.2d 592, 749 N.E.2d 161 ; Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d at 1086, 30 N.Y.S.3d 288 ; Alizio v. Ruskin Moscou Faltischek, P.C. , 126 A.D.3d at 735, 5 N.Y.S.3d 252 ; Farage v. Ehrenberg, 124 A.D.3d 159, 163, 996 N.Y.S.2d 646 ; Landow v. Snow Becker Krauss, P.C. , 111 A.D.3d at 796, 975 N.Y.S.2d 119 ). "A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered" ( Alizio v. Ruskin Moscou Faltischek, P.C. , 126 A.D.3d at 735, 5 N.Y.S.3d 252 ; see McCoy v. Feinman, 99 N.Y.2d at 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 ; Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d at 1086, 30 N.Y.S.3d 288 ; Farage v. Ehrenberg, 124 A.D.3d at 164, 996 N.Y.S.2d 646 ; Landow v. Snow Becker Krauss, P.C. , 111 A.D.3d at 796, 975 N.Y.S.2d 119 ).

However, "[t]he continuous representation doctrine serves to toll the statute of...