Motion Date: 01/18/13
Filed: August 14, 2013
Debra A. James, J.S.C.
The following papers, numbered 1 to 3 were read on this motion to dismiss
Notice of Motion/Order to Show Cause -Affidavits -Exhibits ____ No(s). 1
Answering Affidavits – Exhibits___________________________ No(s). 2
Replying Affidavits - Exhibits ____________________________ No(s). 3
Cross-Motion: Yes _ No
Upon the foregoing papers, it is ordered that this motion is
Plaintiff Rolando Cordero alleges legal malpractice. Defendants, plaintiff's previous attorneys, make a CPLR 3211 motion to dismiss, on the grounds of the statute of limitations, documentary evidence, and failure to state a cause of action.
Defendants are the law firm of Koval Rejtig & Dean PLLC (the law firm) and Christopher Richard Dean (Dean), a member of the firm. On August 17, 2004, plaintiff was hurt when the motorcycle he was riding struck a construction plate in the road. Prior to November 15, 2004, plaintiff retained the law firm to represent him in a personal injury action. It appears from plaintiff's allegations that he dealt mostly with Dean. On September 19, 2006, defendants commenced a personal injury action on plaintiff's behalf against Consolidated Edison of New York, Verizon New York, Brooklyn Union Gas Company, and two other companies.
Subsequently, plaintiff alleges, Dean told him that the law firm was closing and that plaintiff's file was being transferred to another firm. On October 30, 2007, plaintiff, defendants, and plaintiff's new counsel entered into a consent to change attorney form substituting the new counsel for defendants. The new counsel was Kaston Aberle & Levine, Esqs. (Kaston), not a party in this case. The consent to change attorney form was filed with the court on November 28, 2007.
Nonparty Mark Koval was an attorney at defendant law firm. According to his affidavit in support of defendants' motion, he began working at Kaston after the consent to change attorney form was filed. Koval states that he did not take plaintiff's case with him when he left Kaston. He says that he left Kaston on ...