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Nestor v. Putney Twombly Hall & Hirson, LLP

Supreme Court of New York, Second Department

August 23, 2017

Peggy Nestor, as successor administrator of the estate of Oleg Cassini, appellant,
v.
Putney Twombly Hall & Hirson, LLP, et al., respondents, et al., defendants. Index No. 601731/12

          Submitted - May 30, 2017

         D53204 H/afa

          Mary Ellen O'Brien, Garden City, NY, for appellant.

          Rivkin Radler, LLP, Uniondale, NY (Peter C. Contino, Cheryl F. Korman, Todd Belous, Merril S. Biscone, and Evan Krinick of counsel), for respondents.

          RUTH C. BALKIN, J.P. LEONARD B. AUSTIN SHERI S. ROMAN HECTOR D. LASALLE, JJ.

          DECISION & ORDER

         Appeal 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 them.

         ORDERED that the order is affirmed, with costs.

         In 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 determination.

         The 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.

         On a 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).

         "To 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]).

         Here, 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.

         "New 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).

         "In 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" (id. ...


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