Somer & Wand, P.C. v. Rotondi

• Decision Date: 22 June 1998
• Citation: 251 A.D.2d 567,674 N.Y.S.2d 770
• Court: New York Supreme Court — Appellate Division
• Parties: , 1998 N.Y. Slip Op. 6461 SOMER & WAND, P.C., Plaintiff-Appellant, v. Pia ROTONDI, et al., Respondents, Stanley J. Somer, et al., Additional Counterclaim Defendants-Appellants.

Page 770

674 N.Y.S.2d 770

251 A.D.2d 567, 1998 N.Y. Slip Op. 6461

SOMER & WAND, P.C., Plaintiff-Appellant, v. Pia ROTONDI, et al., Respondents Stanley J. Somer, et al., Additional Counterclaim Defendants-Appellants.

Supreme Court, Appellate Division Second Department.

June 22, 1998.

Stanley J. Somer & Associates, P.C., Commack (Jeffrey T. Heller, of counsel), for counterclaim defendant-appellant Stanley J. Somer.

Carl F. Wand, Huntington (Judith M. Rosen, of counsel), counterclaim defendant-appellant pro se.

Neil A. Miller, Mineola, for respondents.

Before O'BRIEN, J.P., and COPERTINO, KRAUSMAN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for nonpayment of legal fees, the plaintiff and the counterclaim defendants appeal, as limited by their briefs, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated January 10, 1997, as granted the defendants' motion for leave to serve an amended counterclaim adding Stanley J. Somer and Carl F. Wand as additional counterclaim defendants, and Stanley J. Somer appeals from so much of an order of the same court, dated December 1, 1997, as, upon reargument, adhered to the original determination. The appeal by the counterclaim defendant Carl F. Wand from the order dated January 10, 1997, also brings up for review so much of the order dated December 1, 1997, as, upon reargument, adhered to the original determination (see, CPLR 5517[b] ). Justice Copertino has been substituted for Justice Lerner (see, 22 NYCRR 670.1[c] ).

ORDERED that the appeal by the plaintiff is dismissed, as it is not aggrieved by the order appealed from (see, CPLR 5511); and it is further,

ORDERED that the appeal by Stanley J. Somer and Carl F. Wand from the order dated January 10, 1997, is dismissed, as that order was superseded by the order dated December 1, 1997, made upon reargument; and it is further,

ORDERED that the order dated December 1, 1997, is reversed insofar as reviewed on the appeal by Carl F. Wand and insofar as appealed from by Stanley J. Somer, and, upon reargument, the motion for leave to serve an amended counterclaim is denied, and the order dated January 10, 1997, is amended accordingly; and it is further,

ORDERED that the appellant Stanley J. Somer is awarded one bill of costs; and it is further,

ORDERED that the appellant Carl F. Wand is awarded one bill of costs.

The defendants sought to amend their counterclaim to recover damages for legal malpractice against the plaintiff professional corporation to include the appellant individual shareholders as additional counterclaim defendants. Contrary to the contentions of the individual shareholders, the 1996 amendment to CPLR 214(6) (L. 1996, ch. 623), which makes an action to recover damages for legal malpractice subject to a three-year Statute of Limitations regardless of whether the underlying theory is based in contract or in tort, is of no consequence to the timeliness of the amended counterclaim because the proposed amended counterclaim was asserted more than six years after the alleged malpractice.

Accordingly, the amended counterclaim is untimely with regard to the individual shareholders unless it relates back to the original counterclaim (see, Mondello v. New York Blood Ctr.--Greater...