Opinion
2003-03176.
Decided April 5, 2004.
In an action to recover damages for accounting malpractice, the defendants appeal from so much of an order of the Supreme Court, Kings County (Rosenberg, J.), dated March 4, 2003, as treated the plaintiff's motion for leave to reargue as one for leave to renew, and, upon renewal, vacated a prior order of the same court dated July 16, 2002, granting their motion to dismiss the complaint pursuant to CPLR 3211(a)(5) and as granted their motion to dismiss the complaint only to the extent of dismissing the claim for punitive damages.
Wilson, Elser, Moskowitz, Edelman Dicker, LLP, White Plains, N.Y. (Thomas R. Manisero, Peter J. Larkin, and Riyaz G. Bhimani of counsel), for appellants.
Ira Daniel Tokayer, New York, N.Y., for respondent.
Before: FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, ROBERT W. SCHMIDT, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff's motion was properly denominated as one for leave to reargue, even though the Supreme Court stated that the "motion should have been denominated as [one] to renew" ( Jandru Mats v. Riteway AV Corp., 1 A.D.3d 565; see EMC Mtge. Corp. v. Stewart, 2 A.D.3d 772; Matter of Orange and Rockland Utils. v. Assessor of Town of Haverstraw, 304 A.D.2d 668; Matter of Eagle Ins. Co. v. Lucero, 276 A.D.2d 695). In any event, the Supreme Court properly reinstated the complaint except for the claim for punitive damages since there are questions of fact regarding the issues of the threshold statute of limitations and the continuous representation doctrine ( see Hale House Ctr. v. Lee Co., 308 A.D.2d 390).
SANTUCCI, J.P., KRAUSMAN, SCHMIDT and RIVERA, JJ., concur.