Schrull v. Weis

• Decision Date: 14 November 2018
• Docket Number: 2016–03769,Index No. 1576/15
• Citation: 166 A.D.3d 829,87 N.Y.S.3d 228
• Parties: James A. SCHRULL, appellant, v. Robert A. WEIS, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 829

87 N.Y.S.3d 228

James A. SCHRULL, appellant,

v.Robert A. WEIS, etc., et al., respondents.

2016–03769

Index No. 1576/15

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

Argued—June 4, 2018

November 14, 2018

Hasapidis Law Offices, South Salem, N.Y. (Annette G. Hasapidis, White Plains, of counsel), for appellant.

Winget, Spadafora & Schwartzberg, LLP, New York, N.Y. (Dianna D. McCarthy, and Heidi M. Gootnick of counsel), for respondents.

JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, HECTOR D. LASALLE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Putnam County (Paul I. Marx, J.), dated March 10, 2016. The order, insofar as appealed from, granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the cause of action alleging legal malpractice, and denied the plaintiff's cross motion to permanently estop the defendants from asserting a statute of limitations defense.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the cause of action alleging legal malpractice, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

On July 23, 2008, the plaintiff allegedly was hired to perform carpentry work at a home. The plaintiff alleged that he sustained injuries to his left hand while using a defective table saw provided by the nonparty homeowner. In September 2008, the plaintiff allegedly consulted with the defendant Robert A. Weis, who practiced law at the defendant Law Firm of William G. Sayegh, P.C. (hereinafter the defendant law firm), concerning the plaintiff's legal rights with respect to the accident. On September 16, 2008, the plaintiff executed a retainer agreement, retaining the defendant law firm "to prosecute and/or adjust a claim for serious personal injuries sustained by [the plaintiff] ... arising from the negligence" of the manufacturer of the table saw, the homeowner, or anyone else responsible (hereinafter the personal injury claim).

On August 7, 2015, the plaintiff commenced this action against Weis, individually and as an associate of the defendant law firm, and the defendant law firm, asserting, inter alia, a cause of action alleging legal malpractice. The complaint alleged that after the plaintiff executed the retainer agreement, Weis informed the plaintiff that the defendants were going to commence a personal injury and products liability action against the owner of the table saw, the manufacturer of the table saw, and " ‘everyone that touched the table saw’ " until it was sold to the homeowner; the personal injury claim was " ‘worth millions of dollars’ "; and it "would take up to seven (7) years to resolve" the personal injury claim. The complaint further alleged that from approximately September 2008 to late 2008, the plaintiff contacted Weis approximately every two weeks to inquire about the status of the personal injury claim. Weis allegedly advised the plaintiff to " ‘put the case on the back burner as it was going to take a long time to resolve,’ " and that Weis " ‘had the plaintiff's contact information,’ " and " ‘if he needed the plaintiff, he would contact him.’ " The complaint also alleged that between approximately late 2008 and July 2014, the plaintiff called the defendants' law office every six to eight months to check on the status of the personal injury claim and spoke to a secretary each time. The complaint alleged that on July 29, 2014, the plaintiff went to the defendants' office and asked Weis "when his court date was" because "it was getting close" to the seven-year "anniversary of the accident." Weis allegedly told the plaintiff that he had " ‘no case,’ " and that Weis thought the plaintiff had " ‘disappeared.’ "

The defendants moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the legal malpractice cause of action, contending that the cause of action was asserted more than three years after the statute of limitations on the personal injury claim had expired and, thus, was time-barred (see CPLR 214[6] ). In opposition, the plaintiff argued that the statute of limitations was tolled under the continuous representation doctrine, and, in effect, that the defendants should be equitably estopped from asserting the statute of limitations as a defense. The plaintiff also cross-moved to permanently estop the defendants from asserting a statute of limitations defense.

In an order dated March 10, 2016, the Supreme Court determined, inter alia, that the cause of action alleging legal malpractice was time-barred. The court concluded that the legal malpractice cause of action accrued on July 23, 2011, when the statute of limitations on the personal injury claim expired; the statute of limitations on the legal malpractice cause of action expired on July 23, 2014, three years after the statute of limitations for the personal injury claim had expired; and the continuous representation doctrine did not toll the statute of limitations. The court also concluded that the doctrine of equitable estoppel was inapplicable. Accordingly, the court granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the legal malpractice cause of action, and denied the plaintiff's cross motion. The plaintiff appeals.

"In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable" ( Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d 788, 789, 51 N.Y.S.3d 183 ; see Stewart v. GDC Tower at Greystone, 138 A.D.3d 729, 729–730, 30 N.Y.S.3d 638 ). "An action to recover damages arising from legal malpractice must be commenced within three years, computed from the time the cause of action accrued to the time the claim is interposed" ( 3rd & 6th, LLC v. Berg, 149 A.D.3d 794, 795, 53 N.Y.S.3d 78 ; see CPLR 214[6] ; McCoy v. Feinman, 99 N.Y.2d 295, 755 N.Y.S.2d 693, 785 N.E.2d 714 ). "A cause of action [alleging] legal malpractice accrues when the malpractice is committed, not when it is discovered" ( Town of Wallkill v. Rosenstein, 40 A.D.3d 972, 973, 837 N.Y.S.2d 212 ; see Roubeni v. Dechert,...