Legal Malpractice

Continuing Representation Avoids Dismissal in Legal Malpractice

By (Andrew Lavoott Bluestone)

Frederick Rehberger, appellant,
v
Garguilo & Orzechowski, LLP, et al., respondents. (Index No. 30120/05)

2007-05158

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2008 NY Slip Op 3187
April 8, 2008, Decided

“In an action to recover damages for legal malpractice, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Kerins, J.), dated May 10, 2007, as granted the motion of the defendants Garguilo & Orzechowski, LLP, and Stanley E. Orzechowski to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(5) as time-barred and that branch of the separate motion of the defendant Jerry Garguilo which was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211(a)(5) as time-barred.

In support of their respective motions pursuant to CPLR 3211(a)(5), each of the defendants demonstrated, prima facie, that the time in which to sue had expired and that the complaint was time-barred as against them (see McCoy v Feinman, 99 NY2d 295, 785 N.E.2d 714, 755 N.Y.S.2d 693; Sabadie v Burke, 47 AD3d 913, 849 N.Y.S.2d 440; Matter of Schwartz, 44 AD3d 779, 843 N.Y.S.2d 403; Savarese v Shatz, 273 AD2d 219, 708 N.Y.S.2d 642; CPLR 214[6]). However, in opposition, the plaintiff raised a triable issue of fact as to whether the statute of limitations was tolled by the [**3] continuous representation doctrine (see Town of Wallkill v Rosenstein, 40 AD3d 972, 837 N.Y.S.2d 212; Tropp v Lumer, 23 AD3d 550, 806 N.Y.S.2d 599; Savarese v Shatz, 273 AD2d 219, 708 N.Y.S.2d 642). Thus, the complaint should not have been dismissed as time-barred.”

Full post as published by New York Attorney Malpractice Blog on May 01, 2008 (boomark / email).