Tulino v. Hiller, P.C.

• Decision Date: 23 February 2022
• Docket Number: 2018–11872,Index No. 502725/16
• Citation: Tulino v. Hiller, P.C., 202 A.D.3d 1132, 164 N.Y.S.3d 157 (N.Y. App. Div. 2022)
• Parties: Eva TULINO, et al., appellants, v. HILLER, P.C., etc., respondents.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 1132

164 N.Y.S.3d 157

Eva TULINO, et al., appellants,

v.HILLER, P.C., etc., respondents.

2018–11872

Index No. 502725/16

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

Submitted—December 3, 2021

February 23, 2022

Andrew Lavoot Bluestone, New York, NY, for appellants.

Hiller, P.C., New York, NY (Michael Hiller of counsel), respondent pro se, and Furman, Kornfeld & Brennan, LLP, New York, NY (A. Michael Furman and Rachel Aghassi of counsel), for respondents Weiss & Hiller, P.C., Arnold Weiss, and Michael Hiller (one brief filed).

BETSY BARROS, J.P., VALERIE BRATHWAITE NELSON, ROBERT J. MILLER, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, breach of contract, and violation of Judiciary Law § 487, the plaintiffs appeal from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated September 12, 2018. The order, insofar as appealed from, granted those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(5) to dismiss the cause of action alleging legal malpractice, pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging breach of contract and violation of Judiciary Law § 487, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendants Arnold Weiss and Michael Hiller.

ORDERED that the order is modified, on the law and in the exercise of discretion, (1) 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, (2) by deleting the provision thereof granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violation of Judiciary Law § 487, and substituting therefor a provision denying that branch of the motion, and (3) by deleting the provision thereof granting those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendants Arnold Weiss and Michael Hiller, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs.

Antonio Tulino (hereinafter Antonio) and Michele Tulino (hereinafter Michele) were brothers who each owned 50% of the stock of Tulino Realty, Inc. (hereinafter Tulino Realty). In 2008, Antonio entered into an agreement to sell his interest in Tulino Realty, but Michele, the president of Tulino Realty, refused to consent to the sale. In 2009, Antonio, individually and on behalf of Tulino Realty, commenced an action against Michele, inter alia, to recover damages for breach of fiduciary duty (hereinafter the underlying action). In 2010, Michele retained the law firm of Weiss and Hiller, P.C. (hereinafter W & H), to represent him in the underlying action. Michele asserted counterclaims against Antonio, among other things, to recover damages for breach of fiduciary duty. Pursuant to a stipulation of discontinuance dated February 2, 2012, Antonio's causes of action asserted against Michele in an amended complaint were withdrawn, but Michele's counterclaims remained. By certification order dated November 16, 2012, Michele was directed to file a note of issue within 90 days or the action would be deemed dismissed.

By order to show cause dated December 27, 2012, W & H moved for leave to withdraw as Michele's counsel in the underlying action on the basis of Michele's alleged failure to pay legal fees. Michele opposed W & H's motion for leave to withdraw as counsel. In an order dated March 18, 2013, the Supreme Court denied W & H's motion. Thereafter, W & H moved, inter alia, for leave to reargue its motion for leave to withdraw as counsel. In an order dated June 24, 2013, the court, among other things, granted that branch of W & H's motion which was for leave to reargue and, upon reargument, in effect, vacated the order dated March 18, 2013, and thereupon granted W & H's motion for leave to withdraw as counsel.

In November 2013, Antonio moved, inter alia, to dismiss Michele's counterclaims due to Michele's failure to timely file a note of issue. In an order dated January 16, 2014, the Supreme Court, among other things, granted that branch of Antonio's motion which was to dismiss the counterclaims.

On February 26, 2016, following Michele's death, his widow, Eva Tulino, the executor of Michele's estate, Nicoletta Tulino, and Tulino Realty commenced the instant action against, among others, W & H, and attorneys Arnold Weiss and Michael Hiller, to recover damages for legal malpractice, breach of contract, fraud, and violation of Judiciary Law § 487. The plaintiffs alleged, inter alia, that Michele's meritorious counterclaims against Antonio in the underlying action were dismissed, with prejudice, due to the defendants’ failure to timely file a note of issue. On June 30, 2016, the plaintiffs filed affidavits of service indicating that Hiller was served with the summons and complaint pursuant to CPLR 308(2) on June 2, 2016, and Weiss was served with the summons and complaint pursuant to CPLR 308(2) on June 22, 2016.

In August 2016, the defendants moved pursuant to CPLR 3211(a)(1), (5), (7), and (8) to dismiss the complaint. In an order dated September 12, 2018, the Supreme Court, inter alia, granted those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(5) to dismiss the cause of action alleging legal malpractice as time-barred, pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging breach of contract and violation of Judiciary Law § 487 for failure to state a cause of action, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Hiller and Weiss for lack of personal jurisdiction. The plaintiffs appeal.

On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see Deutsche Bank Natl. Trust Co. v. Blank, 189 A.D.3d 1678, 1679, 140 N.Y.S.3d 52 ; Christiana Trust v. Birica, 187 A.D.3d 979, 981, 131 N.Y.S.3d 195 ). "If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period" ( Deutsche Bank Natl. Trust Co. v. Blank, 189 A.D.3d at 1679, 140 N.Y.S.3d 52 [internal quotation marks omitted]).

The statute of limitations for a cause of action to recover damages for legal malpractice is three years (see CPLR 214[6] ; DeStaso v. Condon Resnick, LLP, 90 A.D.3d 809, 812, 936 N.Y.S.2d 51 ), which accrues at the time the malpractice is committed (see Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 726 N.Y.S.2d 365, 750 N.E.2d 67 ; Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d 788, 789, 51 N.Y.S.3d 183 ). " ‘However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney's continuing representation of the client with regard to the particular matter terminates’ " ( Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d at 789, 51 N.Y.S.3d 183, quoting Aqua–Trol Corp. v. Wilentz, Goldman & Spitzer, P.A., 144 A.D.3d 956, 957, 42 N.Y.S.3d 56 ). " ‘For the doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney’ " ( Tantleff v. Kestenbaum & Mark, 131 A.D.3d 955, 956, 15 N.Y.S.3d 840, quoting Beroza v. Sallah Law Firm, P.C., 126 A.D.3d 742, 743, 5 N.Y.S.3d 297 ).

Here, the defendants satisfied their initial burden by demonstrating that the alleged legal malpractice accrued on February 14, 2013, the deadline to file the note of issue in the underlying action, which was more than three years prior to the commencement of the instant action (see CPLR 214[6] ; Roubeni v. Dechert, LLP, 159 A.D.3d 934, 935, 70 N.Y.S.3d 60 ). However, in opposition, the plaintiffs raised a question of fact as to whether the continuous representation doctrine tolled the running of the statute of limitations until June 24, 2013, when the Supreme Court, upon reargument, in effect, vacated the March 18, 2013 order, and thereupon granted W & H's motion for leave to withdraw as counsel. Inasmuch as W & H's motion to withdraw as counsel, which was opposed by Michele, was initially denied, Michele could not be expected to commence an action to recover damages for legal malpractice against W & H while the representation continued (see Glamm v. Allen, 57 N.Y.2d 87, 94, 453 N.Y.S.2d 674, 439 N.E.2d 390 ; Deep v. Boies, 53 A.D.3d 948, 950–951, 863 N.Y.S.2d 269 ). Accordingly, the...