Opinion
3590/2010.
Decided December 13, 2010.
Windels Marx Lane Mittendorf, LLP, Howard L. Simon, Esq., New York, New York, for the Plaintiff.
Borah, Goldstein, Altschuler, Nahins Goidel, P.C., by Eric M. Goidel Jeffrey C. Chancas, Esqs., New York, NY, for the Defendant.
This is an action for legal malpractice against the defendant law firm Borah, Goldstein, Altschuler, Schwartz Nahins, P.C. ("Borah Goldstein" or "defendant"), that arises out of an action pending in Queens County Supreme Court, entitled Board of Managers of the Bay Club v Julian Kaplan, et al, No. 21120/2004. The plaintiff was originally represented by the defendant in that pending foreclosure action.
Among the services that Borah Goldstein did on behalf of the Bay Club Board was the preparation and filing of notice of a lien for unpaid common charges pursuant to section 339 of the Condominium Act. The complaint in this action alleges that the Borah Goldstein firm was negligent in drafting and filing the notice of lien, which failed to include a verification of the information set forth therein. The complaint further alleges that as a result of this negligence the Bay Club board sustained damages by requiring it to incur more litigation expenses in defending the validity of the lien. The defendant has moved here to dismiss the complaint. The cross motion by the plaintiff, pursuant to CPLR 2201, is for an order staying the action.
On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, a court must accept as true all the allegations in the complaint ( see, Goldman v Metro. Life Ins. Co. , 5 NY3d 561 ). To establish a cause of action for legal malpractice, a plaintiff must prove that there was an attorney client relationship, that the defendant attorney failed to exercise the requisite skill, care and diligence commonly possessed by a member of the legal profession; the attorney's negligence was the proximate cause of the loss sustained; actual damages as a result of the negligence; and that but for the negligence, the plaintiff would have prevailed in the underlying action or would not have sustained any damages ( see, Levy v Greenberg , 19 AD3d 462 [2nd Dept. 2005]; Pistilli v Gandin , 10 AD3d 353 [2nd Dept. 2004]).
The defendant argues that the plaintiff did not state a claim for malpractice as the plaintiff cannot establish the essential "but for" element in a legal malpractice action, arguing that there was no proof of damages as a result of the alleged malpractice. However, a plaintiff can recover in a legal malpractice action even if it is successful in the underlying action if it incurred increased expenses due to the attorney's negligence in the handling of the action ( see, DePinto v Rosenthal Curry, 237 AD2d 482 [2nd Dept. 1997]). Here, the plaintiff sufficiently alleged that it has sustained ascertainable damages as a consequence of increased litigation expenses that it incurred attributable to the unverified lien. Plaintiff argues that it has stated a cause of action for legal malpractice.
The defendant next argues that the plaintiff is estopped from contesting the validity of the lien because of the decisions in the related proceeding which found that the lien was not defective. This argument does not warrant dismissal as the plaintiff does not claim that the lien was invalid in its complaint, but rather that the fact that the lien was unverified led to the incurrence of additional litigation costs.
The defendant further argues that dismissal is warranted pursuant to CPLR 3211(a)(1). In order to be successful on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must resolve all factual issues and completely dispose of the claim ( see, Held v Kaufman, 91 NY2d 425; Teitler v Max J. Pollack Sons, 288 AD2d 302 [2nd Dept. 2001]). Here, the sparse documentary evidence submitted by the defendants does not resolve all factual issues and therefore does not warrant dismissal of the complaint.
Finally, the defendant's argument that this action is barred by the statute of limitations is without merit. The statute of limitations for a claim for legal malpractice is three years (CPLR 214). However, an attorney's continuous representation of client tolls the statute of limitations until the attorney-client relationship is terminated ( see, Lytell v Lorusso , 74 AD3d 905 [2nd Dept. 2010]; Montes v Rosenzweig , 21 AD3d 460 [2nd Dept. 2005]). Inasmuch as the defendant represented the plaintiff in the underlying action until June 2007, pursuant to the continuous representation doctrine, this action was timely commenced within the three-year limitation period.
The Court next addresses plaintiff's cross motion to stay. Prior to the commencement of this action the plaintiff approached the defendant with a tolling agreement, but the tolling agreement was rejected by the defendant. The plaintiff has now cross-moved to stay this action. Under CPLR 2201, a court may stay a proceeding "upon such terms as may be just." Since some or all of the components of damages will not be resolved until the conclusion of the foreclosure action, a stay of this action pending the resolution of the underlying foreclosure action is warranted ( see, Corrado v Rubine , 25 AD3d 748 [ 2nd Dept. 2006]).
Accordingly, upon the foregoing papers, the defendant's motion to dismiss is denied. The plaintiff's cross motion to stay the action is granted, and this action is stayed pending the resolution of the action pending in Queens County Supreme Court entitled Board of Managers of the Bay Club v Julian Kaplan, et al, No. 21120/2004.
The foregoing is the decision, order, and opinion of the Court.