Summary
dismissing breach of fiduciary duty claim as time-barred because it was duplicative of time-barred legal malpractice claim
Summary of this case from Noskov v. RothOpinion
2012-10-9
Annemarie HADDA, etc., et al., Plaintiffs–Respondents, v. LISSNER & LISSNER LLP, et al., Defendants–Appellants.
Gordon & Rees, LLC, New York (Robert Modica of counsel), for appellants. Glenn Backer, New York, for respondents.
Gordon & Rees, LLC, New York (Robert Modica of counsel), for appellants. Glenn Backer, New York, for respondents.
TOM, J.P., MAZZARELLI, CATTERSON, RENWICK, DeGRASSE, JJ.
Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered September 23, 2011, which denied defendants' motion to dismiss the complaint as time-barred, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.
Defendants made out a prima facie showing that the three-year statutory limitations period (CPLR 214[6] ) expired before this legal malpractice action was commenced in July 2010. Plaintiffs failed to raise an issue of fact whether the doctrine of continuous representation applied here to toll the limitations period ( see Glamm v. Allen, 57 N.Y.2d 87, 94, 453 N.Y.S.2d 674, 439 N.E.2d 390 [1982]; CLP Leasing Co., LP v. Nessen, 12 A.D.3d 226, 784 N.Y.S.2d 535 [1st Dept.2004] ). The only evidence plaintiffs submitted on this issue was an affidavit by the husband of one of the plaintiffs, not a party to plaintiffs' retainer agreement with defendants, stating that he spoke to the individual defendant four times between January and May 2007. Even assuming the husband had the authority to speak for plaintiffs, the intermittent telephone contact between himself and defendants does not constitute “clear indicia of an ongoing, developing and dependent relationship between the client and the attorney” or of “a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” ( see Matter of Merker, 18 A.D.3d 332, 332–333, 795 N.Y.S.2d 215 [1st Dept.2005] [internal quotation marks omitted] ).
The causes of action for breach of fiduciary duty and breach of contract are duplicative of the malpractice cause of action, and are therefore also time-barred ( seeCPLR 214[6]; 6645 Owners Corp. v. GMO Realty Corp., 306 A.D.2d 97, 762 N.Y.S.2d 60 [2003] ).