Peggy Nestor, as successor administrator of the estate of Oleg Cassini, appellant,
Putney Twombly Hall & Hirson, LLP, et al., respondents, et al., defendants. Index No. 601731/12
Submitted - May 30, 2017
Ellen O'Brien, Garden City, NY, for appellant.
Radler, LLP, Uniondale, NY (Peter C. Contino, Cheryl F.
Korman, Todd Belous, Merril S. Biscone, and Evan Krinick of
counsel), for respondents.
C. BALKIN, J.P. LEONARD B. AUSTIN SHERI S. ROMAN HECTOR D.
DECISION & ORDER
from an order of the Supreme Court, Nassau County (Jerome C.
Murphy, J.), entered July 2, 2013. The order granted the
motion of the defendants Putney Twombly Hall & Hirson,
LLP, William M. Pollak, and Philip H. Kalban pursuant to CPLR
3211(a) to dismiss the complaint insofar as asserted against
that the order is affirmed, with costs.
1952, Oleg Cassini (hereinafter the decedent) and his wife
entered into a property settlement agreement during the
pendency of their divorce action. The property settlement
agreement ultimately was incorporated by reference into a
California final judgment of divorce entered April 7, 1953.
In the property settlement agreement, the decedent agreed to
leave by testamentary disposition 25% of his net estate to
his daughter Christina. Pursuant to a choice-of-law
provision, that agreement was to be construed and interpreted
in accordance with California law. The decedent's last
will and testament did not include a testamentary disposition
leaving 25% of his net estate to Christina. After the
decedent died in 2006, Christina filed a verified claim
asserting her entitlement to 25% of the decedent's net
estate, and petitioned for a determination of the validity
and enforceability of her claim. The executor of the
decedent's estate moved to dismiss Christina's claim,
and Christina cross-moved for summary judgment on the issue
of liability. The Surrogate's Court granted
Christina's cross motion for summary judgment,
subsequently granted leave to reargue and renew, and upon
reargument and renewal, adhered to its original
determination. This Court, in Matter of Cassini (95
A.D.3d 1311), affirmed so much of the order as, upon
reargument and renewal, adhered to the original
executor of the decedent's estate subsequently commenced
this legal malpractice action based on the failure of the
estate's attorneys to raise in the Surrogate's Court
proceeding the defense that Christina's claim was barred
by California Code of Civil Procedure §§ 337.5 and
366.3. The defendants Putney Twombly Hall & Hirson, LLP,
William M. Pollak, and Philip H. Kalban (hereinafter
collectively the Putney defendants) moved, inter alia,
pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar
as asserted against them. The Supreme Court granted the
motion, and the plaintiff appeals.
motion to dismiss for failure to state a cause of action
pursuant to CPLR 3211(a)(7), "the sole criterion is
whether the pleading states a cause of action, and if from
its four corners factual allegations are discerned which
taken together manifest any cause of action cognizable at law
a motion for dismissal will fail" (Guggenheimer v
Ginzburg, 43 N.Y.2d 268, 275). The complaint must be
construed liberally, the factual allegations deemed to be
true, and the nonmoving party granted the benefit of every
possible favorable inference (see Leon v Martinez,
84 N.Y.2d 83, 87-88). "When evidentiary material is
considered, the criterion is whether the proponent of the
pleading has a cause of action, not whether he has stated
one, and, unless it has been shown that a material fact as
claimed by the pleader to be one is not a fact at all and
unless it can be said that no significant dispute exists
regarding it, again dismissal should not eventuate"
(Guggenheimer v Ginzburg, 43 N.Y.2d at 275).
prevail in a legal malpractice action, a plaintiff must show
that the attorney failed to exercise that degree of care,
skill, and diligence commonly possessed and exercised by a
member of the legal community, that such negligence was the
proximate cause of their damages, and that, but for the
attorney's negligence, the plaintiff would have prevailed
on the underlying claim" (Perks v Lauto &
Garabedian, 306 A.D.2d 261, 261 [internal quotation
marks and citation omitted]).
the Supreme Court properly determined that California Code of
Civil Procedure §§ 337.5 and 366.3 were
inapplicable to this action, and that pleading those statutes
would not have resulted in a determination that
Christina's claim was barred.
York courts will generally enforce a clear and unambiguous
choice-of-law clause contained in an agreement so as to give
effect to the parties' intent" (Matter of
Frankel v Citicorp Ins. Servs., Inc., 80 A.D.3d 280,
285). Although this rule applies to "matters of
substantive law, " procedural matters "are governed
by the law of the forum" (id. at 285 [internal quotation
marks omitted]). "Significantly, the law of the forum
normally determines for itself whether a given question is
one of substance or procedure" (id. at 286
[internal quotation marks omitted]). In determining whether a
statute is procedural or substantive, the other state's
classification of its statute "is instructive and should
not be ignored, " but "New York is not bound by,
and principles of comity do not prompt [a New York court] to
adopt" the other state's classification (Tanges
v Heidelberg N. Am., 93 N.Y.2d 48, 54).
New York, Statutes of Limitation are generally considered
procedural because they are [v]iewed as pertaining to the
remedy rather than the right" (id. at 54-55 [internal
quotation marks omitted]). A statute of limitations
"does not begin to run until a cause of action
accrues" (id. at 55). In contrast, "a statute of
repose begins to run when the specified event or events takes
place, regardless of whether a potential claim has accrued
or, indeed, whether any injury has occurred" (id.;
see Blatz v Westinghouse Elec. Corp., 274 A.D.2d
491, 491). "The repose period serves as an absolute
barrier that prevents a plaintiff s right of action"
(Tanges v Heidelberg N. Am., 93 N.Y.2d at 55
[internal quotation marks omitted]). "In other words,
the period of repose has the effect of preventing what might
otherwise have been a cause of action from ever arising"
(id. at 55-56 [internal quotation marks and emphasis
omitted]). Statutes of repose "exhibit a substantive
texture, nature and consequence that distinguishes them from
ordinary limitation provisions" (id. at 56). In
Tanges, in distinguishing statutes of repose from
statutes of limitations, the Court of Appeals noted that it
had previously stated that "[i]f a statute creates a
cause of action and attaches a time limit to its
commencement, the time is an ingredient of the cause"