exercised. Commentary to this section clarifies this rule: "Where a statute of limitations shortens the time for the enforcement of an existing right the Legislature must nevertheless afford the parties a reasonable time in which to prosecute their claims...." Thus, even if the legislature intended the 1996 amendment to apply retroactively, a question I do not address, such retroactive application could not apply to claims accruing prior to its enactment.
Delli Bovi's action accrued on May 5, 1992. At that time under New York law, plaintiff had until May 5, 1998, to file a claim of legal malpractice based in contract such as he alleges. Under the new amendment, effective September 4, 1996, plaintiff's claim would have been immediately extinguished were it to apply retroactively, as more than three years had passed since the claim arose, even though under the earlier law plaintiff would still have had over a year and a half in which to commence his action. As a result, the amendment cannot apply to plaintiff's cause of action.
Defendant Reisman argues that, even if the amendment to § 214 applies only prospectively, it should bar plaintiff's claim because the instant action was not commenced until November 25 1996, over two months after the amendment took effect. As noted above, however, under defendant's approach plaintiff's complaint would have been immediately barred upon the enactment of the amendment, even though a day prior to such enactment plaintiff could have reasonably expected to have almost two more years in which to file. Such a reading of the statute would violate due process. Elgahnian v. Eaton & Van Winkle, N.Y.L.J. (Sup. Ct., June 24, 1997).
Other New York courts interpreting new statutes of limitations have found that such amendments must provide a reasonable period of time for suits upon causes of action previously existing, or such amendments would violate due process. See Alston v. Transport Workers Union of Greater New York, 225 A.D.2d 424, 639 N.Y.S.2d 359, 360 (App. Div. 1st Dept. 1996) (finding that, despite retrospective effect of N.Y.C.P.L.R. 217, it would be unconstitutional to apply new statute of limitations to plaintiff's claim); O'Connor v. Maine-Endwell Central School District, 133 Misc. 2d 1126, 509 N.Y.S.2d 472, 474 (Sup. Ct. 1986) (finding application of new statute of limitations to action previously accrued would be unconstitutional because the action would have been immediately barred upon the amendments effective date).
The court in Elgahnian found that, because the legislature did not provide an explicit period of time after the effective date of the amendment to N.Y.C.P.L.R. § 214 for individuals to bring accrued malpractice claims that would have otherwise been timely, it was up to the court to determine whether the action had been timely filed. But in Alston the court simply held a new statute of limitations inapplicable and applied the prior statute of limitations relevant to the claim. Regardless of approach, plaintiff here filed within three months of the effective date of the amendment to N.Y.C.P.L.R. § 214, well within the old statute of limitations and within a reasonable period of time after the new statute of limitations went into effect.
Thus, defendant Reisman's motion for summary judgment on the ground that plaintiff's complaint is time barred is denied.
Failure to State a Cause of Action
In reviewing a complaint for dismissal under Rule 12(b)(6), the district court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the complaining party's favor. Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.); see Sykes v. James, 13 F.3d 515, 518-19 (2d Cir. 1993). The complaint may be dismissed only where "it appears beyond doubt that the [complainant] can prove no set of facts in support of his claim which would entitle him to relief." Id. (internal citations omitted); Frazier v. Coughlin, 850 F.2d 129, 129 (2d Cir. 1988).
A legal malpractice claim in the State of New York requires plaintiff to establish four elements: 1) existence of an attorney-client relationship, 2) negligence on the part of the attorney, 3) proximate cause, and 4) proof that, but for the alleged acts of malpractice, plaintiff would not have suffered the injury. See Sacco v. Burke, 764 F. Supp. 918 (S.D.N.Y. 1981); Ospina v. Booth, 1995 U.S. Dist. LEXIS 8981, 1995 WL 386485 (S.D.N.Y. 1995) (citations omitted).
Defendant Reisman argues that plaintiff has failed to meet the third and fourth requirement because Delli Bovi fails to allege facts to show that he would have prevailed in either the worker's compensation case or at the grievance hearing related to the termination of his employment "but for" the actions of defendant. Plaintiff recognizes certain defects in his complaint and has, accordingly, submitted a cross-motion to amend his complaint to include allegations from which it may be inferred that, but for Goldstein's malpractice, the outcome of the grievance proceeding would have been different.
Rule 15(a) provides that leave to amend "shall be freely given when justice so requires." Furthermore, "in the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed undue prejudice to the opposing party ... futility of amendment, etc., -- the leave sought should, as the rules require, be freely given." Foman v. Davis, 371 U.S. 178, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). Here, it appears that the amendment sought would fill the gap in plaintiff's pleadings that is the subject of this motion to dismiss. Defendant has not asserted that it would be prejudiced by any such amendment, and, indeed, it is already aware of the general nature of plaintiff's complaint.
For the reasons stated above, defendants motion to dismiss the amended complaint is granted, with leave for plaintiffs to file a second amended complaint within thirty days of the date of this opinion.
The docket clerk is directed to mail a copy of the within to all parties.
Dated: Brooklyn, New York
Dec 31, 1997
Charles P. Sifton
United States District Judge