Green v. Conciatori

• Decision Date: 21 February 2006
• Docket Number: 2004-09701.
• Citation: Green v. Conciatori, 26 AD3d 410, 809 N.Y.S.2d 559, 2006 NY Slip Op 1278 (N.Y. App. Div. 2006)
• Parties: LEON GREEN, Appellant, v. ROBERT J. CONCIATORI et al., Defendants, and JESUS J. PENA et al., Respondents.
• Court: New York Supreme Court — Appellate Division

26 A.D.3d 410

809 N.Y.S.2d 559

2006 NY Slip Op 01278

LEON GREEN, Appellant, v. ROBERT J. CONCIATORI et al., Defendants, and JESUS J. PENA et al., Respondents.

2004-09701.

Appellate Division of the Supreme Court of the State of New York, Second Department.

February 21, 2006.

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated September 28, 2004, which granted the motion of the defendants Jesus J. Pena and Christopher E. Wittstruck, and the separate motion of the defendant Eric F. Popkin pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint insofar as asserted against them.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The plaintiff commenced this action to recover damages for legal malpractice against the defendants, who were his attorneys in an underlying personal injury suit. The defendants Jesus J. Pena and Christopher E. Wittstruck, and the defendant Eric F. Popkin, separately moved to dismiss the complaint insofar as asserted against them on the grounds that the action was time-barred and that the complaint failed to state a cause of action. The Supreme Court granted the motions, concluding that the action was time-barred as against the respondents. We affirm, but in part on a different ground.

The Supreme Court properly concluded that the plaintiff's cause of action against Popkin was time-barred. Popkin acted only as trial counsel, and did not continue to represent the plaintiff after September 15, 1999. Therefore, the three-year statute of limitations for a legal malpractice action as against Popkin had expired when the plaintiff commenced this action in February 2004 (see CPLR 214 [6]).

While Pena and Wittstruck failed to demonstrate that the action against them was time-barred, the complaint nevertheless failed to state a cause of action to recover damages for legal malpractice against them. The plaintiff asserted three causes of action against them. In his first cause of action, he alleged that they were negligent in failing to discover certain facts about the plaintiff's underlying accident that differed from the facts the plaintiff had given them regarding the accident. These facts were known to the plaintiff, but never disclosed to Pena or Wittstruck, nor any attorney at their firm before the complaint was filed. While an attorney has a...