Opinion
October 26, 1999
Order, Supreme Court, New York County (Carol Huff, J.).
Plaintiffs' malpractice claims were properly dismissed as barred by the applicable Statutes of Limitations. Plaintiffs have made no factual demonstration to support their claim of entitlement to discovery to determine whether there was any continuing representation that would toll the running of the statutory period, nor have they asserted a valid basis for estopping defendant from invoking a Statute of Limitations defense against them. Also properly dismissed was plaintiffs' claim for indemnification, since the claim against plaintiffs for which indemnification was sought, asserted as a counterclaim against plaintiffs in a Nassau County action, was settled in plaintiffs' favor.
We modify only to the extent of granting that branch of defendant's motion for summary judgment seeking dismissal of plaintiffs' cause of action for fraud. In support of that branch of defendant's motion, defendant offered the affidavit of plaintiff's former business associate who affirmed that he and plaintiff negotiated the terms of the subject buy out agreement and dictated its terms to one of defendant law firm's attorneys, who thereafter drafted the agreement solely in accordance with the dictated terms. The specific attorney who drafted the agreement and upon whom plaintiffs claim to have relied is dead. Defendant's submission sufficed to establish a prima facie right to judgment in its favor, which plaintiffs failed to rebut. The record is devoid of an affidavit or statement from a person with actual knowledge setting forth the substance of any fraudulent representations made to plaintiffs, and plaintiffs may not resurrect their untimely negligence claim as one for fraud.
We have reviewed plaintiffs' remaining arguments and find them unavailing.
SULLIVAN, J.P., TOM, RUBIN, SAXE, BUCKLEY, JJ.