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Elmakies v. Sunshine

Supreme Court of New York, Second Department

January 29, 2014

Nissim Elmakies, et al., appellants,
v.
Jeffrey Sunshine, etc., et al., respondents, et al., defendants. Index No. 16965/11

Nesenoff & Miltenberg, LLP, New York, N.Y. (Andrew T. Miltenberg and Marco A. Santori of counsel), for appellants.

Kaufman Dolowich & Voluck, LLP, Woodbury, N.Y. (Brett A. Scher and Yale Pollack of counsel), for respondents.

WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

In an action to recover damages for legal malpractice and breach of fiduciary duty, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (DeStefano, J.), dated September 24, 2012, as granted that branch of the motion of the defendants Jeffrey Sunshine and Jeffrey Sunshine, P.C., which was to dismiss the complaint insofar as asserted against them as time-barred.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The instant action to recover damages for legal malpractice and breach of fiduciary duty was commenced in December 2011. The complaint does not allege when the conduct giving rise to these causes of action occurred.

The defendant Jeffrey Sunshine and his law firm, Jeffrey Sunshine, P.C. (hereinafter together the Sunshine defendants), moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred. In support of the motion, Sunshine submitted an affidavit stating that his firm "was retained to represent the plaintiff Downstate Elmira Acquisiton Corp. in a series of real estate closings for the purchase of properties in Elmira, New York, " and "[t]to the best of my recollection, the last closing took place on October 5, 2007." In support of that claim, Sunshine submitted a copy of a closing statement dated October 5, 2007.

In opposition, the plaintiff Nissim Elmakies submitted an affidavit stating that Sunshine acted as his business attorney, and was in "continuous communication regarding my investment." However, the last communication with Sunshine alleged by the plaintiffs was a facsimile transmission dated December 7, 2007.

The Supreme Court granted that branch of the motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against the Sunshine defendants on the ground that the action was barred by the three-year statute of limitations.

The Sunshine defendants made a prima facie showing that the three-year statute of limitations for legal malpractice (see CPLR 214[6]) expired before the action was commenced, and the plaintiffs failed to raise a question of fact in opposition (see Hadda v Lissner & Lissner LLP, 99 A.D.3d 476, 477). Further, since the plaintiffs seek monetary relief for the alleged breach of fiduciary duty, the statute of limitations for that cause of action is also three years (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 139). That cause of action was based on the same facts underlying the legal malpractice cause of action and, therefore, was time-barred (see Vermont Mut. Ins. Co. v McCabe & Mack LLP, 105 A.D.3d 837, 839; Tsafatinos v Lee David Auerbach, P.C., 80 A.D.3d 749, 750).

The plaintiffs' remaining contentions either are without merit or need not be reached in light of our determination.

MASTRO, J.P., COHEN, MILLER and HINDS-RADIX, JJ., concur.


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