Kuritzky v. Sirlin & Sirlin

• Decision Date: 23 September 1996
• Court: New York Supreme Court — Appellate Division
• Parties: Philip KURITZKY, et al., Respondents, v. SIRLIN & SIRLIN, Appellant.

Page 806

647 N.Y.S.2d 806

231 A.D.2d 607

Philip KURITZKY, et al., Respondents, v. SIRLIN & SIRLIN, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 23, 1996.

Schiavetti, Geisler, Corgan, Soscia, DeVito, Gabriele and Nicholson, White Plains (Gerald DiEdwards, Steven H. Mutz, and Dena Berke, of counsel), for appellant.

Holly Kennedy Passantino, White Plains, for respondents.

Before MILLER, J.P., and ALTMAN, HART and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for legal malpractice, the defendant appeals from so much of an order of the Supreme Court, Westchester County (Colabella, J.), dated May 17, 1995, as denied its motion for summary judgment dismissing the complaint on the ground that the action is time barred.

ORDERED that the order is modified, on the law, by adding a provision thereto granting summary judgment to the plaintiffs dismissing the defendant's first affirmative defense based on the Statute of Limitations; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs.

The Supreme Court acted properly in denying the defendant's motion for summary judgment dismissing the action as time barred. The malpractice claim accrued in 1983 when the defendant committed errors in drafting a lease extension agreement between the plaintiffs, as landlord, and their commercial tenant (see, Glamm v. Allen, 57 N.Y.2d 87, 453 N.Y.S.2d 674, 439 N.E.2d 390; Boyd v. Gering, Gross & Gross, 226 A.D.2d 489, 641 N.Y.S.2d 108; Tal-Spons Corp. v. Nurnberg, 213 A.D.2d 395, 623 N.Y.S.2d 604; Anderson Co. v. Devine, 202 A.D.2d 382, 608 N.Y.S.2d 514). Contrary to the defendant's contention, the record demonstrates that the applicable limitations period (see, Santulli v. Englert, Reilly & McHugh, 78 N.Y.2d 700, 579 N.Y.S.2d 324, 586 N.E.2d 1014; Padilla v. New York City Trans. Auth., 184 A.D.2d 760, 585 N.Y.S.2d 491) was tolled between the accrual of the claim and the discovery of the malpractice in 1990, since the defendant continuously represented the plaintiffs during that period by performing legal services related to the matter out of which the malpractice claim arose (see, Weiss v. Manfredi, 83 N.Y.2d 974, 616 N.Y.S.2d 325, 639 N.E.2d 1122; Glamm v. Allen, supra; Greene v. Greene, 56 N.Y.2d 86, 451 N.Y.S.2d 46, 436 N.E.2d 496; Burrowes v. Caruso, Spillane, Contrastano & Ulaner, 203 A.D.2d 228, 609 N.Y.S.2d 660; Bass & Ullman v. Chanes, 185 A.D.2d 750, 586 N.Y.S.2d 610; Luk Lamellen U. Kupplungbau GmbH v. Lerner, 166 A.D.2d 505, 560 N.Y.S.2d 787). Indeed, the defendant, acting as the plaintiffs' legal counsel, repeatedly sought to enforce the tenant's obligations under the terms of the lease and the lease extension agreement, and on at least two occasions advised the tenant of rent increases mandated by the extension agreement. In connection with these efforts, the defendant also sent a copy of the faulty extension agreement to the plaintiffs for the purpose of forwarding it to the tenant. Once the drafting errors were discovered in 1990, the defendant engaged in litigation on behalf of the plaintiffs to correct the errors. The litigation ultimately proved unsuccessful in 1993. Accordingly, the plaintiffs' commencement of...