Opinion
CA 04-03026.
June 10, 2005.
Appeal from an order of the Supreme Court, Steuben County (Marianne Furfure, A.J.), entered April 23, 2004 in a legal malpractice action. The order, among other things, denied defendant's motion to dismiss the amended complaint.
DAVID C. DONOHUE, TONAWANDA, FOR DEFENDANT-APPELLANT.
JEFFREY J. BABCOCK, PITTSFORD, FOR PLAINTIFF-RESPONDENT.
Before: Martoche, J.P., Smith, Lawton and Hayes, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order that denied his motion to dismiss the amended complaint in this legal malpractice action and his alternative request for a change of venue. We note that defendant does not address in his brief that part of the order denying his alternative request for a change of venue, and thus we deem abandoned defendant's appeal from that part of the order ( see Ciesinski v. Town of Aurora, 202 AD2d 984). Contrary to defendant's contention, Supreme Court properly denied the motion insofar as defendant contended that the amended complaint is time-barred. The record establishes that there is an issue of fact whether the statute of limitations was tolled by the continuous representation doctrine ( see Gravel v. Cicola, 297 AD2d 620). Also contrary to defendant's contention, the court properly denied the motion insofar as defendant contended that the amended complaint fails to state a cause of action. Accepting the allegations in the complaint as true and according plaintiff the benefit of every possible favorable inference, as we must ( see Leon v. Martinez, 84 NY2d 83, 87-88), we conclude that the amended complaint states a cause of action for legal malpractice. We have considered the remaining contentions of defendant and conclude that they are without merit.