Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered March 24, 2010. The order denied defendant's motion to dismiss the complaint.
Rimland & Assoc.
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and GOLIA, JJ.
ORDERED that the order is affirmed, without costs.
Plaintiff, a former client of defendant law firm, commenced this action by filing a summons with indorsed complaint, alleging "Breach of Contract or Warranty" and "Negligence." In its answer, defendant generally denied the allegations of the indorsed complaint and alleged several affirmative defenses. Thereafter, defendant moved to dismiss the complaint based upon plaintiff's failure to state a cause of action. Defendant further contended that, assuming that plaintiff was alleging legal malpractice, the action was barred by the statute of limitations. The Civil Court denied defendant's motion.
On the papers presented, the Civil Court properly determined that, at this juncture, the facts as alleged by plaintiff fit within a cognizable legal theory. Insofar as defendant seeks a determination of the merits of plaintiff's complaint or post-answer dismissal based on the statute of limitations (see CPLR 3211 [a] ; [e]), these issues are more appropriately addressed in a motion for summary judgment. We note that in making this determination, we express no opinion on the ultimate merits of plaintiff's claims against defendant, nor upon the merits of defendant's defenses.
Accordingly, the order is affirmed.
Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: May 05, 2011
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