Deep v. Boies
| Decision Date | 23 October 2014 |
| Docket Number | 515769. |
| Citation | 2014 N.Y. Slip Op. 07215,995 N.Y.S.2d 298,121 A.D.3d 1316 |
| Parties | John A. DEEP, Appellant, v. David BOIES et al., Respondents, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
John A. Deep, Cohoes, appellant pro se.
Gleason, Dunn, Walsh & O'Shea, Albany (Thomas F. Gleason of counsel), for respondents.
Before: LAHTINEN, J.P., ROSE, EGAN JR., LYNCH and CLARK, JJ.
Appeals (1) from a judgment of the Supreme Court (Platkin, J.), entered September 27, 2012 in Albany County, upon a dismissal of the complaint at the close of defendants' case, and (2) from an order of said court, entered December 6, 2012 in Albany County, which, among other things, denied plaintiff's motion for reconsideration.
As detailed in our prior decision in this matter (53 A.D.3d 948, 863 N.Y.S.2d 269 [2008] ), plaintiff commenced this action in October 2005 alleging that defendant David Boies, defendant Boies, Schiller & Flexner, LLP (hereinafter BSF) and defendant Straus & Boies LLP engaged in certain acts of legal malpractice. Pertinent here, plaintiff alleged that Boies, BSF and Straus & Boies (hereinafter collectively referred to as defendants) misappropriated plaintiff's file sharing software, known as Aimster, while serving as his counsel with regard to myriad transactions involving the different corporate entities established to develop and market the software. In our prior decision, we affirmed Supreme Court's rulings that the cause of action for malpractice based on the misappropriation was asserted outside of the applicable three-year statute of limitations (see CPLR 214[6] ), but questions of fact existed with regard to whether the time to commence the action was tolled by the continuous representation doctrine (53 A.D.3d at 952, 863 N.Y.S.2d 269 ). We observed that “after appropriate discovery, the trial court [could] elect to order an immediate trial on this issue as it could expeditiously dispose of the entire action” (id. at 952, 863 N.Y.S.2d 269 ). With the parties' consent, Supreme Court oversaw what became protracted discovery before scheduling a trial pursuant to CPLR 3212(c). Following the trial, the court dismissed plaintiff's complaint and, thereafter, denied plaintiff's motions for a new trial and/or to renew or reargue (see CPLR 2221, 4404 ). This Court denied plaintiff's motion to vacate our July 2008 decision and for expedited consideration and sanctions. Plaintiff now appeals from the judgment dismissing his complaint, as well as from the order denying plaintiff's posttrial motions.1
Although we previously denied defendants' request for summary judgment because the scope of the legal relationship between the parties was unclear, there is no dispute that BSF represented plaintiff in the copyright litigation and that their legal relationship in that litigation had terminated by November 4, 2002. According to plaintiff, defendants misappropriated software, at the latest, on June 25, 2002 (53 A.D.3d at 950, 863 N.Y.S.2d 269 ). Since this action was not commenced until October 28, 2005, outside of the three-year statute of limitations (see CPLR 214[6] ), plaintiff's burden of proof at trial was to establish that the copyright litigation was part of a “continuing, interconnected representation” (53 A.D.3d at 952, 863 N.Y.S.2d 269 ) by defendants. If so, the statute would have been tolled through November 4, 2002 and the action would have been commenced on a timely basis.
“The continuous representation doctrine tolls the statute of limitations ... where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (McCoy v. Feinman, 99 N.Y.2d 295, 306, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002] ). It requires more than a continuing, general, professional relationship; it “tolls the [s]tatute of [l]imitations only where the continuous representation pertains specifically to the matter in which the attorney committed the alleged malpractice” (Shumsky v. Eisenstein, 96 N.Y.2d 164, 168, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001] ). Plaintiff concedes that there was no retainer agreement or letter of engagement detailing the scope of the relationship between plaintiff and defendants. Rather, his claim of continuous representation stems from unsigned correspondence dated November 8, 2000, wherein an entity known as Datamine LLC, purportedly controlled by Boies and/or members of his family, outlined the advisory services it would provide to Buddy USA Inc., an entity controlled by plaintiff and created to market and develop the Aimster service, and correspondence dated November 15, 2000 from Boies addressed to plaintiff as chief executive officer of Buddy USA, wherein Boies stated that his son had agreed to serve on Buddy USA's board of directors to represent Datamine's 15% equity interest in the company. According to plaintiff, the November 15, 2000 letter confirmed an oral agreement reached between Boies, plaintiff and defendant William Duker during a meeting that they had in October 2000.2
Where, as here, Supreme Court makes a determination following a nonjury trial pursuant to CPLR 3212(c), our obligation is to “independently review the weight of the evidence and ... grant the judgment warranted by the record, while according due deference to the trial judge's factual findings particularly where, as here, they rest largely upon credibility assessments” (Rini v. Kenn–Schl, LLC, 64 A.D.3d 988, 989, 881 N.Y.S.2d 725 [2009], lv. denied 13 N.Y.3d 711, 2009 WL 3853155 [2009] [internal quotation marks and citations omitted] ). Based upon our independent review of the record, we discern no error in Supreme Court's determination that plaintiff's misappropriation claim was barred by the statute of limitations.
During the trial, plaintiff testified that, at the time of the alleged oral agreement, he believed that Duker was an attorney with BSF. He explained that during the relevant time period, his “discussions” with Boies occurred via telephone, that is, he was in the room while Duker spoke to Boies on the telephone. As such, plaintiff was privy only to Duker's side of these conversations. Plaintiff also testified that he often met with Melissa Faas, the office manager at the BSF office located in the City of Albany, and she would relay messages to and from Boies with regard to legal services allegedly provided during October and November 2002.
Boies testified that there was no oral agreement to represent plaintiff and, though he recalled attending a football game with Duker, he denied ever meeting or speaking with plaintiff in October 2000. Faas testified that, although she did serve as office manager for BSF, Boies did not work out of the Albany office, she did not discuss business with Boies, and she was not authorized to speak for Boies and never told plaintiff otherwise. Kathleen Franklin, who served as an attorney in BSF's Albany office, testified that while she recalled meeting plaintiff, she also recalled advising plaintiff that she was representing BSF's clients, not plaintiff, in the transactions involving Aimster.3
At all times, it was plaintiff's burden to prove that the continuous representation doctrine applied here (see 860 Fifth Ave. Corp. v. Superstructures—Engrs. & Architects,
15 A.D.3d 213, 213, 790 N.Y.S.2d 12 [2005] ). During the trial, even plaintiff conceded that while it was his hope that he would receive legal advice and guidance, neither Boies nor BSF ever formally agreed to represent him, and neither the November 8, 2000 Datamine letter nor the November 15, 2000 Boies letter could reasonably be construed as an offer to provide legal services to him individually. Rather, it appears that plaintiff relied on Duker's advice and guidance and that Duker led him to believe that he was an agent for either BSF or Boies. Plaintiff failed to offer any evidence, other than his own belief, to allow either Supreme Court or this Court to conclude that either BSF or Boies had any knowledge that Duker was extending himself in this manner. Plaintiff did not provide any written work product, nor was he able to recall the substantive content of any of the conversations he claims he had with Boies. In our view, Supreme Court was within its authority to credit the testimony of Boies and Franklin that there was no legal relationship between them. Rather, because it was plaintiff alone who believed that he was being represented by BSF and Boies, Supreme Court properly found that he did not establish the existence of an “interconnected” attorney-client relationship to handle plaintiff's personal affairs that was related to its representation of him on the copyright claim (see Griffin v. Anslow, 17 A.D.3d 889, 892–893, 793 N.Y.S.2d 615 [2005] ; Volpe v. Canfield, 237 A.D.2d 282, 283, 654 N.Y.S.2d 160 [1997], lv. denied 90 N.Y.2d 802, 660 N.Y.S.2d 712, 683 N.E.2d 335 [1997] ). Accordingly, Supreme Court properly dismissed the complaint as barred by the statute of limitations.
We reject plaintiff's argument that he was unable to meet his burden because defendants failed to comply with their discovery obligations. Although discovery in this action was underway prior to this Court's July 2008 decision, the record reveals Supreme Court's extraordinary efforts, occurring over more than three years since, to get the parties to complete “appropriate discovery” (53 A.D.3d at 952, 863 N.Y.S.2d 269 ) to allow the “immediate” trial of the continuous representation issue. Although plaintiff was represented by counsel when disclosure began in this case, he elected to represent himself in June 2009. In October 2009, he asked Supreme Court for an immediate trial pursuant to CPLR 3212(c). In response, and as relevant here, Supreme Court declined the request and instead issued an order directing the parties to complete discovery with regard to the continuous representation issue by the end of the year.4
The record confirms that...
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