Lindsay v. Pasternack Tilker Ziegler Walsh Stanton & Romano LLP

• Citation: 129 A.D.3d 790,2015 N.Y. Slip Op. 04819,12 N.Y.S.3d 124
• Decision Date: 10 June 2015
• Docket Number: 2014-06338
• Parties: Rudie LINDSAY, Respondent, v. PASTERNACK TILKER ZIEGLER WALSH STANTON & ROMANO LLP, formerly known as Brecher, Fishman, Pasternack, Walsh, Tilker & Ziegler, P.C., appellant.
• Court: New York Supreme Court Appellate Division

129 A.D.3d 790

12 N.Y.S.3d 124

2015 N.Y. Slip Op. 04819

Rudie LINDSAY, Respondent

v.PASTERNACK TILKER ZIEGLER WALSH STANTON & ROMANO LLP, formerly known as Brecher, Fishman, Pasternack, Walsh, Tilker & Ziegler, P.C., appellant.

2014-06338

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

June 10, 2015.

Gordon & Rees, LLP, New York, N.Y. (Joseph Salvo and Ryan Sestack of counsel), for appellant.

The Berkman Law Office, LLC, Brooklyn, N.Y. (Robert J. Tolchin and David Steigbigel of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.

Opinion

In an action to recover damages for legal malpractice, the defendant appeals from an order of the Supreme Court, Kings County (Sweeney, J.), dated August 27, 2013, which denied its motion pursuant to CPLR 3211(a) (1), (5), and (7) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

On November 27, 2006, the plaintiff allegedly was driving his employer's bus when he collided with another vehicle. Shortly thereafter, the plaintiff retained the defendant, a law firm, to represent him in connection with the motor vehicle accident. According to the defendant, in April 2007, it decided not to prosecute a personal injury action on the plaintiff's behalf and advised the plaintiff of this fact by letter dated June 8, 2007, while continuing to represent the plaintiff with respect to a workers' compensation claim. On or about October 21, 2010, the plaintiff discharged the defendant and hired a new attorney. In November 2012, the plaintiff commenced this action against the defendant to recover damages for legal malpractice. The plaintiff alleged that the defendant failed to commence a personal injury action on his behalf against the owner and operator of the other vehicle involved in the motor vehicle accident before the statute of limitations expired. The defendant made a pre-answer motion to dismiss the complaint as time-barred, for failure to state a cause of action, and based upon documentary evidence. The defendant contended that it did not represent the plaintiff with respect to the personal injury action, based upon assertions that an attorney formerly with the defendant orally informed the plaintiff that “a personal injury action was not feasible” and thereafter sent the letter dated June 8, 2007, to the plaintiff by regular and certified mail. In support of the motion, the defendant submitted a copy of the letter and a blank certified mail receipt.

In opposition, the plaintiff's attorney noted that the defendant did not submit an affidavit or affirmation from the attorney who allegedly mailed the letter dated June 8, 2007. The attorney further noted that the certified mail receipt was blank, and no return receipt was submitted. The plaintiff also submitted a personal affidavit wherein he stated that he retained the defendant for both his workers' compensation claim and his personal injury claim, he was never informed that the defendant would not represent him in a personal injury action, and he never received the letter dated June 8, 2007.

In a reply affidavit, the attorney who allegedly mailed the letter dated June 8, 2007, who was now working at another law firm, stated that she “specifically advised” the plaintiff in a telephone conversation that “a personal injury action was not feasible” and as a result, the defendant “would not be representing him in a personal injury action.” She further stated that she sent the letter dated June 8, 2007, to the plaintiff via regular mail and certified mail.

The Supreme Court denied the defendant's motion, and we affirm.

The Supreme Court properly denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. When moving to dismiss an action pursuant to CPLR 3211(a)(5), the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see Landow v. Snow Becker Krauss, P.C., 111 A.D.3d 795, 796, 975 N.Y.S.2d 119 ; Tsafatinos v. Wilson Elser Moskowitz Edelman & Dicker, LLP, 75 A.D.3d 546, 546, 903 N.Y.S.2d 907 ). The statute of limitations for a legal malpractice cause of action is three years (see CPLR 214[6] ). This legal malpractice action accrued when the statute of limitations for the underlying personal injury action expired (see Davis v. Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, 258 A.D.2d 321, 321, 685 N.Y.S.2d 216 ; Goicoechea v. Law Offs. of Stephen R. Kihl, 234 A.D.2d 507, 508, 651 N.Y.S.2d 198 ). Here, the plaintiff's underlying personal injury action accrued on November 27, 2006, when the accident occurred, and the statute of limitations expired three years later, on November 27, 2009 (see CPLR 214[5] ). Thus, this legal malpractice action accrued on November 27, 2009, and the statute of limitations expired three years later, on November 27, 2012. This action was commenced on November 15, 2012. Therefore, this action was not time-barred.

The Supreme Court also properly denied that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1). The evidence submitted by the defendant, consisting of the June 8, 2007, letter, the blank certified mail receipt, and the affidavit of its former attorney, did not constitute documentary evidence (see 25–01 Newkirk Ave., LLC v. Everest Natl. Ins. Co., 127 A.D.3d 850, 7 N.Y.S.3d 325 ; Attias v. Costiera, 120 A.D.3d 1281, 1282–1283, 993 N.Y.S.2d 59 ).

Further, the Supreme Court properly denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint. The gravamen of the defendant's defense is that there was no attorney-client relationship between it and the plaintiff when the statute of limitations for the underlying personal injury action expired. The elements of a cause of action sounding in legal malpractice include...