Rakusin v. Miano

• Decision Date: 17 May 2011
• Docket Number: 2009-10286,2009-10287,Index No. 15096/07
• Parties: Barbara Rakusin, appellant, v. Joseph Miano, et al., respondents.
• Court: New York Supreme Court — Appellate Division

2011 NY Slip Op 04225

Barbara Rakusin, appellant,
v.
Joseph Miano, et al., respondents.

2009-10286
2009-10287
Index No. 15096/07

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

Decided on May 17, 2011

ANITA R. FLORIO, J.P.

RUTH C. BALKIN

ARIEL E. BELEN

ROBERT J. MILLER, JJ.

Zaremba Brownell & Brown, PLLC, New York, N.Y. (Richard J. Brownell of counsel), for appellant.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Marian C. Rice and Scott Kossove of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for legal malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Murphy, J.), dated September 8, 2009, which granted the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(5), and (2) a judgment of the same court dated October 9, 2009, which, upon the order dated September 8, 2009, is in favor of the defendant and against the plaintiff dismissing the complaint.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

The Supreme Court properly granted the defendants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint. An action to recover damages arising from legal malpractice must be commenced within three years after accrual (see CPLR 214[6], 203[a]). On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired. The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is...