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Spitzer v. Newman

Supreme Court of New York, Second Department

July 25, 2018

Ari Spitzer, respondent,
v.
Marc Z. Newman, appellant. Index No. 505427/15

          Argued - March 20, 2018

         D56204 M/hu

          Rivkin Radler LLP, Uniondale, NY (Cheryl F. Korman, David S. Wilck, Stuart M. Bodoff, and Avigael C. Fyman of counsel), for appellant.

          Michael B. Schulman & Associates, P.C., Melville, NY, for respondent.

          RUTH C. BALKIN, J.P. LEONARD B. AUSTIN SANDRA L. SGROI ANGELA G. IANNACCI, JJ.

          DECISION & ORDER

         In an action to recover damages for legal malpractice, the defendant appeals from an order of the Supreme Court, Kings County (Sylvia G. Ash, J.), dated March 2, 2016. The order denied the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint and stayed the action pending resolution of an underlying action entitled Spitzer v Yarmish, pending in the Supreme Court, Kings County, under Index No. 13874/13.

         ORDERED that the order is affirmed, with costs.

         This action alleging legal malpractice arises out of loans the plaintiff made to several people in 2006. In return for the loans, the borrowers signed notes and confessions of judgment. On April 1, 2007, the borrowers allegedly defaulted on the notes. In July 2013, more than six years after the alleged defaults, the plaintiff commenced an action against the borrowers (hereinafter the underlying action). The underlying action is pending in the Supreme Court, Kings County, under Index No. 13874/13.

         After commencing the underlying action, the plaintiff commenced this action in May 2015, alleging legal malpractice against the defendant, the attorney who represented him in the loan transactions at issue in the underlying action. The plaintiff alleges that the defendant failed to timely file the confessions of judgment and also failed to timely commence actions to recover on the notes. The defendant moved pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint as barred by the statute of limitations or, in the alternative, as premature. The Supreme Court denied the motion, but stayed this action pending resolution of the underlying action. The defendant appeals.

         On a motion to dismiss a complaint on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired (see Wells Fargo Bank, N.A. v Eitani, 148 A.D.3d 193, 197). The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or otherwise inapplicable (see Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 A.D.3d 788, 789; Beroza v Sallah Law Firm, P.C., 126 A.D.3d 742, 742). Here, the defendant's motion to dismiss under the statute of limitations was based on the premise that his representation of the plaintiff in connection with underlying loan transactions ended in 2009. Accordingly, he contends, the three-year statute of limitations for legal malpractice expired in 2012, before this action was commenced in 2015 (see CPLR 214[6]). In opposition, however, the plaintiff raised a question of fact as to whether the continuous representation doctrine tolled the statute of limitations as to this action (see Grace v Law, 24 N.Y.3d 203, 212; Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 A.D.3d at 789-790; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d 1085, 1086; cf. Red Zone LLC v Cadwalader, Wickersham & Taft LLP, 27 N.Y.3d 1048, 1049-1050). Accordingly, we agree with the Supreme Court's determination that the complaint was not subject to dismissal pursuant to CPLR 3211(a)(1) and (5) (see Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 A.D.3d at 790; Louzoun v Kroll Moss & Kroll, LLP, 113 A.D.3d 600, 601-602).

         Moreover, to the extent that the plaintiffs action may be premature because, while the underlying action is pending, it cannot be determined whether the defendant's alleged legal malpractice proximately caused the plaintiff to sustain damages (see generally Shumsky v Eisenstein, 96 N.Y.2d 164, 166; Ackerman v Price Waterhouse, 84 N.Y.2d 535, 542-543; Hershco v Gordon & Gordon,155 A.D.3d 1006; Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 A.D.3d at 789; Landow v Snow Becker Krauss, P.C.,111 A.D.3d 795, 796), the Supreme Court providently exercised its discretion in staying this action pending the determination of the underlying action (see Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 22:5 at 119-122 [2009 ed]; cf. Flintock ...


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