& Kenniff, P.C., Mineola, NY (James M. Ingoglia, Glenn W.
Caulfield, and E. Gordon Haesloop of counsel), for appellant.
Kaufman Dolowich & Voluck, LLP, Woodbury, NY (Brett A.
Scher and Jonathan B. Isaacson of counsel), for respondents.
C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, HECTOR
D. LASALLE, JJ.
DECISION & ORDER
action, inter alia, to recover damages for legal malpractice,
the plaintiff appeals from an order of the Supreme Court,
Nassau County (Cozzens, Jr., J.), entered April 9, 2015,
which granted the defendants' motion pursuant to CPLR
3211(a) to dismiss the complaint.
that the order is affirmed, with costs.
2009, the plaintiff sold a business located in North Babylon.
The closing for the sale of the business took place on
December 15, 2009. The defendant Stuart R. Berg of the
defendant law firm Stuart R. Berg, P.C., represented the
plaintiff at the closing.
March 2014, the plaintiff commenced this action against the
defendants to recover damages for negligence, negligent
misrepresentation, and legal malpractice in connection with
the closing documents. The defendants moved pursuant to CPLR
3211(a)(5) and (7) to dismiss the complaint as time-barred.
action to recover damages arising from legal malpractice must
be commenced within three years, computed from the time the
cause of action accrued to the time the claim is interposed
(see CPLR 214; McCoy v Feinman, 99
N.Y.2d 295; Rakusin v Miano, 84 A.D.3d 1051 ;
Tsafatinos v Lee David Auerbach, P.C., 80 A.D.3d 749).
" A legal malpractice claim accrues when all the facts
necessary to the cause of action have occurred and an injured
party can obtain relief in court. In most cases, this accrual
time is measured from the day an actionable injury occurs,
even if the aggrieved party is then ignorant of the wrong or
injury. What is important is when the malpractice was
committed, not when the client discovered it'"
(Tantleff v Kestenbaum & Mark, 131 A.D.3d 955,
956, quoting McCoy v Feinman, 99 N.Y.2d at 301).
Continuous representation may toll the statute of
limitations, but "only where there is a mutual
understanding of the need for further representation on the
specific subject matter underlying the malpractice
claim" (McCoy v Feinman, 99 N.Y.2d at 306;
see Shumsky v Eisenstein, 96 N.Y.2d 164;
Tantleff v Kestenbaum & Mark, 131 A.D.3d at
956-957; Pittelli v Schulman, 128 A.D.2d 600, 601).
motion to dismiss a complaint as time-barred, a defendant
must establish, prima facie, that the time in which to
commence the action has expired. The burden then shifts to
the plaintiff to raise a question of fact as to whether the
statute of limitations is tolled or is otherwise inapplicable
(see Bullfrog, LLC v Nolan, 102 A.D.3d 719;
Rakusin v Miano, 84 A.D.3d 1051, 1052).
the defendants established, prima facie, that the action was
time-barred by demonstrating that the closing for the sale of
the business took place in December 2009, while the action
was commenced in March 2014 (see Bullfrog, LLC v
Nolan, 102 A.D.3d at 720; Rakusin v Miano, 84
A.D.3d at 1052). In opposition, the plaintiff failed to raise
a question of fact as to whether continuous representation
tolled the statute of limitations (see McCoy v
Feinman, 99 N.Y.2d at 306; Bullfrog, LLC v
Nolan, 102 A.D.3d at 720).
plaintiff also failed to raise a question of fact as to
whether it was induced by the fraud, misrepresentations, or
deception of the defendants to refrain from filing a timely
action so as to invoke the doctrine of equitable estoppel to
preclude the defendants from asserting the statute of
limitations as a defense (see Simcuski v Saeli, 44
N.Y.2d 442, 448-449; Garcia v Peterson, 32 A.D.3d
cause of action to recover damages for negligent
misrepresentation was duplicative of the cause of action to
recover damages for legal malpractice as it arose from the
same underlying facts and did not allege distinct damages
(see Tsafatinos v Lee David Auerbach, P.C., 80
A.D.3d at 750; Conklin v Owen, 72 A.D.3d 1006;
Symbol Tech., Inc. v Deloitte & Touche, LLP, 69
A.D.3d 191, 199). Accordingly, dismissal of that cause of
action was proper.
plaintiff's remaining contentions are without merit.
the Supreme Court properly granted the defendants' motion
pursuant to ...