Opinion
9805 Index 157904/17
07-09-2019
Rafael ETZION, Plaintiff-Appellant, v. BLANK ROME, LLP, et al., Defendants-Respondents.
Andrew Lavoott Bluestone, New York, for appellant. Hinshaw & Culbertson LLP, New York (Philip Touitou of counsel), for respondent.
Andrew Lavoott Bluestone, New York, for appellant.
Hinshaw & Culbertson LLP, New York (Philip Touitou of counsel), for respondent.
Renwick, J.P., Gische, Kapnick, Singh, JJ.
Plaintiff alleges that defendants negligently drafted a fee provision in a stipulation of settlement in his divorce action, which ended with entry of a final judgment of divorce in August 2005. He alleges that, as a result of defendants' negligence, he was unable to recover the attorneys' fees he incurred in defending against a subsequent lawsuit brought by his former wife, who alleged that he had fraudulently misrepresented and concealed information concerning the value of an asset while negotiating the stipulation of settlement, resulting in more than $38 million in damages to her (see Etzion v. Etzion, 84 A.D.3d 1015, 1018, 924 N.Y.S.2d 438 [2d Dept. 2011], lv dismissed 18 N.Y.3d 854, 938 N.Y.S.2d 843, 962 N.E.2d 266 [2011] ; Etzion v. Etzion, 62 A.D.3d 646, 652, 880 N.Y.S.2d 79 [2d Dept. 2009], lv dismissed 13 N.Y.3d 824, 890 N.Y.S.2d 437, 918 N.E.2d 950 [2009] ). After plaintiff, represented by defendants, prevailed in the fraud action (see Etzion v. Etzion, 138 A.D.3d 678, 29 N.Y.S.3d 422 [2d Dept. 2016], lv denied 28 N.Y.3d 910, 47 N.Y.S.3d 226, 69 N.E.3d 1022 [2016] ), he commenced the instant malpractice action, effectively seeking to be relieved of the obligation to pay defendants' fees for the services rendered by them in the post-divorce fraud action.
The motion court correctly found that this action, which was commenced 12 years after the divorce action ended, is barred by the applicable three-year statute of limitations (see Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001] ; CPLR 214[6] ). Contrary to plaintiff's contentions, the continuous representation doctrine is inapplicable, because defendants were retained under two separately executed retainer agreements in the divorce action and the fraud action (see Glamm v. Allen, 57 N.Y.2d 87, 93–94, 453 N.Y.S.2d 674, 439 N.E.2d 390 [1982] ; see also Shumsky, 96 N.Y.2d at 168, 726 N.Y.S.2d 365, 750 N.E.2d 67 ). The first retainer agreement expressly stated that it did not cover any services following the entry of a final judgment of divorce. Thus, there was no mutual understanding that further representation was necessary on the specific subject matter of the malpractice claim (see McCoy v. Feinman, 99 N.Y.2d 295, 306, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002] ; see also Champlin v. Pellegrin, 111 A.D.3d 411, 412, 974 N.Y.S.2d 379 [1st Dept. 2013] ). Moreover, the divorce action and the fraud action, although related, were two distinct and separate actions (see Verkowitz v. Ursprung, 153 A.D.3d 1443, 61 N.Y.S.3d 336 [2d Dept. 2017] ; see also Voutsas v. Hochberg, 103 A.D.3d 445, 446, 958 N.Y.S.2d 903 [1st Dept. 2013], lv denied 22 N.Y.3d 853, 976 N.Y.S.2d 447, 998 N.E.2d 1072 [2013] ).