Opinion
06-02-2016
RED ZONE LLC, Respondent, v. CADWALADER, WICKERSHAM & TAFT LLP, Appellant.
Cravath, Swaine & Moore LLP, New York City (David R. Marriott of counsel), for appellant. Jeffrey A. Jannuzzo, New York City, and Hinman Straub PC, Albany (James T. Potter of counsel), for respondent.
Cravath, Swaine & Moore LLP, New York City (David R. Marriott of counsel), for appellant.
Jeffrey A. Jannuzzo, New York City, and Hinman Straub PC, Albany (James T. Potter of counsel), for respondent.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be modified, with costs, by denying plaintiff's motion for summary judgment and reinstating defendant's affirmative defenses of the statute of limitations and comparative negligence and, as so modified, affirmed.
Viewing the evidence in the light most favorable to defendant as the non-movant (see generally Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ; Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157, 960 N.E.2d 948 [2011] ), material triable questions of fact exist regarding whether defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by members of the legal profession (see Dombrowski v. Bulson, 19 N.Y.3d 347, 350, 948 N.Y.S.2d 208, 971 N.E.2d 338 [2012] ). While a party may not create a feigned issue of fact to defeat summary judgment (see S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776 [1974] ), contrary to plaintiff's assertion here, the affidavit of the attorney who represented plaintiff did not flatly contradict his prior deposition testimony. Therefore, the affidavit should have been considered in opposition to plaintiff's motion.
Similarly, plaintiff did not meet its burden of demonstrating that defendant's statute of limitations defense fails as a matter of law. Specifically, triable questions of fact exist regarding whether the statute of limitations was tolled by the continuous representation doctrine in light of: the significant gap in time between the alleged malpractice and the later communications between the parties; the changed nature of the alleged legal representation of plaintiff by defendant; the absence of any clear delineation of the period of such representation; and defendant's submission of affidavits disclaiming any mutual understanding of legal representation after 2005 (see generally Grace v. Law, 24 N.Y.3d 203, 212, 997 N.Y.S.2d 334, 21 N.E.3d 995 [2014] ).
Judges PIGOTT, RIVERA, ABDUS–SALAAM, STEIN and GARCIA concur; Chief Judge DiFIORE and Judge FAHEY taking no part.
Order modified, with costs, by denying plaintiff's motion for summary judgment and reinstating defendant's affirmative defenses
of statute of limitations and comparative negligence and, as so modified, affirmed, in a memorandum.