Louzoun v. Kroll Moss & Kroll, LLP

• Decision Date: 08 January 2014
• Citation: 2014 N.Y. Slip Op. 00096,979 N.Y.S.2d 94,113 A.D.3d 600
• Court: New York Supreme Court — Appellate Division
• Parties: Henriette LOUZOUN, also known as H. Malka Louzoun, respondent, v. KROLL MOSS AND KROLL, LLP, et al., appellants.

113 A.D.3d 600

979 N.Y.S.2d 94

2014 N.Y. Slip Op. 00096

Henriette LOUZOUN, also known as H. Malka Louzoun, respondent,

v.KROLL MOSS AND KROLL, LLP, et al., appellants.

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

Jan. 8, 2014.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Joan Martino Faley of counsel), for appellants.

Henriette Louzoun, also known as H. Malka Louzoun, New York, N.Y., respondent pro se.

RANDALL T. ENG, P.J., PETER B. SKELOS, MARK C. DILLON, and SANDRA L. SGROI, JJ.

In an action to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Nassau County (Feinman, J.), entered February 6, 2013, which denied their motion pursuant to CPLR 3211 (a)(1) and (5) to dismiss the complaint based upon documentary evidence and as barred by the applicable statute of limitations.

ORDERED that the order is affirmed, with costs.

The defendant law firm, Kroll Moss and Kroll, LLP (hereinafter KMK), represented the plaintiff at a matrimonial trial that concluded on February 21, 2008, and in the execution of a related visitation stipulation dated May 9, 2008. The plaintiff alleges that KMK committed various acts of professional malpractice during the course of its representation. The instant action was commenced against KMK and the individual attorney defendants by the filing of a summons and complaint on August 9, 2011. The defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (5), arguing that the action was commenced beyond the three-year statute of limitations measured from the termination of the attorney-client relationship.

In support of their motion, the defendants proffered an email message from the plaintiff dated August 7, 2008, in which the plaintiff expressed dissatisfaction with KMK, accused KMK of having committed malpractice, disputed fees, and demanded her legal file. The defendants argued that the August 7, 2008, email message ended the trust and confidence required of a continuing attorney-client relationship, rendering the action commenced on August 9, 2011, untimely. In opposition, the plaintiff argued that her action was timely commenced, as the defendants' representation of her continued until August 19, 2008, the date on which she executed a formal Consent to Change Attorney. The Supreme Court denied the defendants' motion.

To dismiss a complaint pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the defendant bears the burden of establishing, prima facie, that the time in which to sue had expired prior to the commencement of the action ( see Singh v. Edelstein, 103 A.D.3d 873, 962 N.Y.S.2d 225; DeStaso v. Condon Resnick, LLP, 90 A.D.3d 809, 812, 936 N.Y.S.2d 51). The statute of limitations for legal malpractice is three years measured from the date of the alleged malpractice ( seeCPLR 214[6]; McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714; Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 726 N.Y.S.2d 365, 750 N.E.2d 67; Singh v. Edelstein, 103 A.D.3d at 873, 962 N.Y.S.2d 225), but may...