Brindisi, Murad, Brindisi & Pearlman, LLP, Utica (Eva Brindisi Pearlman of Counsel), for Plaintiff–Appellant.

Costello, Cooney & Fearon, PLLC, Syracuse (Nicole Marlow–Jones of Counsel), for Defendants–Respondents.

PRESENT: CENTRA, J.P., LINDLEY, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

Plaintiff commenced this legal malpractice action alleging that defendants did not advise her properly during settlement negotiations in the underlying matrimonial action. In her complaint, plaintiff alleged that defendants conducted no investigation into her ex-husband's financial assets and instead advised her to settle the action, assuring her that the initial settlement offer was the best offer she would receive. She further alleged that defendants' representation fell below the ordinary and reasonable skill and knowledge commonly possessed by members of the legal profession and that, but for defendants' negligent representation, she would have obtained a more equitable distribution of the marital assets.

We agree with plaintiff that Supreme Court erred in granting defendants' motion to dismiss to the extent they relied on CPLR 3211(a)(1). A court may grant such a motion "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v. Mut. Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; see Vassenelli v. City of Syracuse, 138 A.D.3d 1471, 1473, 31 N.Y.S.3d 320 ). In an action alleging legal malpractice during the course of an underlying action that resulted in a settlement, "the focus becomes whether ‘settlement of the action was effectively compelled by the mistakes of counsel’ " (Chamberlain, D'Amanda, Oppenheimer & Greenfield, LLP v. Wilson, 136 A.D.3d 1326, 1328, 25 N.Y.S.3d 468, lv. dismissed 28 N.Y.3d 942, 38 N.Y.S.3d 510, 60 N.E.3d 404 ). In her affidavit in opposition to the motion, plaintiff stated that defendants advised her that an investigation into her ex-husband's financial assets would be a costly and lengthy process, but did not explain that she could apply to the court for her ex-husband to bear the costs of the investigation. As a result, plaintiff was convinced that she could not afford to conduct an investigation and settled the matter without knowing what she was giving up. Thus, although the settlement agreement in the underlying action contained a comprehensive waiver of plaintiff's rights, we conclude that the language of that waiver does not conclusively establish that plaintiff was not effectively compelled to settle by defendants' allegedly deficient representation (see Schiller v. Bender, Burrows & Rosenthal, LLP, 116 A.D.3d 756, 757, 983 N.Y.S.2d 594 ; see generally CPLR 3211[a][1] ).

To the extent that defendants moved in the alternative to dismiss the action as barred by the three-year statute of limitations for legal malpractice actions (see CPLR 214[6] ; 3211[a][5] ), we agree with plaintiff that defendants are not entitled to that alternative relief. " ‘The continuous representation doctrine tolls the statute of limitations ... where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim’ " (Zorn v. Gilbert, 8 N.Y.3d 933, 934, 834 N.Y.S.2d 702, 866 N.E.2d 1030 ; see R. Brooks Assoc., Inc. v. Harter Secrest & Emery LLP, 91 A.D.3d 1330, 1331, 937 N.Y.S.2d 789 ). Regardless of when plaintiff's claim accrued, defendants' representation of plaintiff in the underlying action ended, at the earliest, upon entry of the judgment of divorce in June 2014 (see Zorn, 8 N.Y.3d at 934, 834 N.Y.S.2d 702, 866 N.E.2d 1030 ; Gaslow v. Phillips Nizer Benjamin Krim & Ballon, 286 A.D.2d 703, 706, 730 N.Y.S.2d 146, lv. dismissed 97 N.Y.2d 700, 739 N.Y.S.2d 99, 765 N.E.2d 302 ).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.