Opinion
2014-04791 Index No. 17821/12.
02-10-2016
O.K. PETROLEUM INTERNATIONAL, LTD., et al., appellants, v. PALMIERI & CASTIGLIONE, LLP, respondent.
Richman & Levine, P.C., Garden City, N.Y. (Keith H. Richman and Ira Seligman of counsel), for appellants. Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Matthew K. Flanagan and Christopher T. Rogers of counsel), for respondent.
Richman & Levine, P.C., Garden City, N.Y. (Keith H. Richman and Ira Seligman of counsel), for appellants.
Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Matthew K. Flanagan and Christopher T. Rogers of counsel), for respondent.
Opinion
In an action to recover damages for legal malpractice and unjust enrichment, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Mayer, J.), dated December 8, 2013, which denied that branch of their motion pursuant to CPLR 3126 which was to strike the defendant's answer for failure to comply with court-ordered discovery, and granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion pursuant to CPLR 3126 which was to strike the defendant's answer. The drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful or contumacious (see Holand v. Cascino, 122 A.D.3d 575, 576, 996 N.Y.S.2d 135; Pascarelli v. City of New York, 16 A.D.3d 472, 473, 791 N.Y.S.2d 617; see also Palomba v. Schindler El. Corp., 74 A.D.3d 1037, 1037–1038, 903 N.Y.S.2d 137). Here, the plaintiffs failed to make such a showing.
Contrary to the plaintiffs' contentions, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action to recover damages for legal malpractice as untimely (see Farage v. Ehrenberg, 124 A.D.3d 159, 164, 996 N.Y.S.2d 646; Aseel v. Jonathan E. Kroll & Assoc., PLLC, 106 A.D.3d 1037, 1038, 966 N.Y.S.2d 202; Rupolo v. Fish, 87 A.D.3d 684, 685, 928 N.Y.S.2d 596; Piliero v. Adler & Stavros, 282 A.D.2d 511, 512, 723 N.Y.S.2d 91). The defendant demonstrated that the alleged legal malpractice occurred more than three years before this action was commenced on June 11, 2012, through evidence showing that the plaintiffs had substituted counsel by June 3, 2009 (see CPLR 2146; Rupolo v. Fish, 87 A.D.3d at 685, 928 N.Y.S.2d 596). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the statute of limitations was tolled by the continuous representation doctrine until the formal notice of substitution was executed on June 12, 2009 (see Farage v. Ehrenberg, 124 A.D.3d at 166, 996 N.Y.S.2d 646; Rupolo v. Fish, 87 A.D.3d at 685, 928 N.Y.S.2d 596).
Moreover, the Supreme Court properly dismissed the plaintiffs' cause of action alleging unjust enrichment as duplicative of the legal malpractice cause of action (see Blanco v. Polanco, 116 A.D.3d 892, 896–897, 986 N.Y.S.2d 151; Town of Wallkill v. Rosenstein, 40 A.D.3d 972, 974, 837 N.Y.S.2d 212; see also Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d 812, 813–814, 963 N.Y.S.2d 313; Sitar v. Sitar, 50 A.D.3d 667, 670, 854 N.Y.S.2d 536).
Further, in view of the fact that the plaintiffs had personal knowledge of the relevant facts, their purported need to conduct additional discovery did not warrant denial of the defendant's motion (see Lampkin v. Chan, 68 A.D.3d 727, 727–728, 891 N.Y.S.2d 113; Lopez v. WS Distrib., Inc., 34 A.D.3d 759, 760, 825 N.Y.S.2d 516; Lambert v. Bracco, 18 A.D.3d 619, 620, 795 N.Y.S.2d 662).
The plaintiffs' remaining contentions either are without merit or have been rendered academic in light of our determination.