Opinion
2002-02568
Argued May 19, 2003.
June 23, 2003.
In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Warshawsky, J.), entered February 21, 2002, which granted the defendant's motion, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint.
Michael P. Berkley, Garden City, N.Y., for appellant.
Scher Scher, P.C., Great Neck, N.Y. (Robert A. Scher of counsel), for respondent.
Before: NANCY E. SMITH, J.P., SONDRA MILLER, STEPHEN G. CRANE, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
A cause of action for legal malpractice accrues when the malpractice is committed, not when it is discovered, and an action to recover damages therefor must be commenced within three years of accrual (see McCoy v. Feinman, 99 N.Y.2d 295, 301; cf. Shumsky v. Eisenstein, 96 N.Y.2d 164, 166; Barbieri v. Shayne, Dachs, Stanisci, Corker Sauer, 304 A.D.2d 512 [2d Dept, Apr. 7, 2003]; Carnevali v. Herman, 293 A.D.2d 698). A defendant seeking dismissal of a legal malpractice claim as time-barred pursuant to CPLR 3211(a)(5) bears the initial burden of proving, prima facie, that the time in which to commence an action has expired (see Gravel v. Cicola, 297 A.D.2d 620, 621).
Here, the alleged malpractice accrued when the defendant failed to draft a proposed visitation schedule for possible inclusion in the plaintiff's judgment of divorce prior to it being signed by the issuing judge. Since the instant action was not commenced within three years after accrual, and the statute of limitations was not tolled, the action was untimely when commenced (see Barbieri v. Shayne, Dachs, Stanisci, Corker Sauer, supra; Carnevali v. Herman, supra; Dignelli v. Berman, 293 A.D.2d 565, 566; Piliero v. Adler Stavros, 282 A.D.2d 511).
The plaintiff's remaining contentions are without merit.
SMITH, J.P., S. MILLER, CRANE and COZIER, JJ., concur.