Albany Sav. Bank, F.S.B. v. Caffry, Pontiff, Stewart, Rhodes & Judge, P.C.

• Decision Date: 09 June 1983
• Citation: 463 N.Y.S.2d 896,95 A.D.2d 918
• Court: New York Supreme Court — Appellate Division
• Parties: ALBANY SAVINGS BANK, F.S.B., Appellant, v. CAFFRY, PONTIFF, STEWART, RHODES & JUDGE, P.C., Respondent.

Page 896

463 N.Y.S.2d 896

95 A.D.2d 918

ALBANY SAVINGS BANK, F.S.B., Appellant, v. CAFFRY, PONTIFF, STEWART, RHODES & JUDGE, P.C., Respondent.

Supreme Court, Appellate Division,

Third Department.

June 9, 1983.

Cooper, Erving & Savage, Albany (Thomas A. Callaghan, Albany, of counsel), for appellant.

Roche & Wolkenbreit, Albany (Stuart C. Henderson, Albany, of counsel), for respondent.

Before MAHONEY, P.J., and SWEENEY, MAIN, CASEY and WEISS, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered September 30, 1982 in Albany County, which granted defendant's motion for summary judgment.

Plaintiff commenced this action against defendant law firm to recover damages allegedly caused by a failure to properly examine title to real property owned by the Flewellings. In November of 1977, a member of defendant firm advised plaintiff that title was free and clear of any liens, encumbrances or defects affecting marketability, and plaintiff, in reliance thereon, granted a mortgage upon the land on September 1, 1978. Thereafter, upon the mortgagor's default, plaintiff obtained title at a foreclosure sale. When eviction proceedings were commenced, it was discovered that approximately 20 feet of the dwelling was located on an adjoining parcel. Plaintiff's title became unmarketable as the result of an action to quiet title. Plaintiff commenced the instant action alleging causes of action in both tort and contract. Special Term dismissed plaintiff's first cause of action as barred by the three-year Statute of Limitations governing legal malpractice claims (CPLR 214, subd. 6), and determined the second cause insufficient to state a cause of action for breach of contract. This appeal ensued.

There should be an affirmance. Plaintiff urges that the liability of an attorney certifying title is contractual in nature and thus the six-year contract Statute of Limitations applies (CPLR 213, subd. 2). Plaintiff's complaint alleges that defendant agreed "to obtain a specific result, that is, to obtain a mortgage which would be a first lien upon the aforementioned premises, and which would be free of all incumbrances and prior liens". In our view, the record fails to support this argument. Although plaintiff labels this a contract action, it is clear that the character of an action is determined by the essence of the conflict, not by a mere label (Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 264, 11 N.E.2d 902). In Brainard v. Brown, 91 A.D.2d 287, 458 N.Y.S.2d 735), this court recently concluded that the contract Statute of Limitations applies to attorney-client agreements "only when there a promise to perform and no subsequent performance, or when the attorney has explicitly undertaken to discharge a specific task and then failed to do so (Boecher v. Borth, 51 A.D.2d 598 )" (id. at 288, 458 N.Y.S.2d 735). The pivotal issue is whether defendant expressly agreed to accomplish a specific result. Upon an examination of the pleadings, we fail to find any specific agreement, oral or written, to...