Opinion
2014-07-9
Kitty Jie YUAN, et al., appellants, v. 2368 WEST 12TH STREET, LLC, et al., defendants, Ronen Shiponi, etc., respondent.
James W. Borkowski, White Plains, N.Y., for appellants. Gordon & Rees, LLP, New York, N.Y. (Ryan J. Sestack of counsel), for respondent.
James W. Borkowski, White Plains, N.Y., for appellants. Gordon & Rees, LLP, New York, N.Y. (Ryan J. Sestack of counsel), for respondent.
In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Pfau, J.), dated April 12, 2013, as granted that branch of the motion of the defendant Ronen Shiponi which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Ronen Shiponi which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred is denied.
On a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint as barred by the applicable statute of limitations, the moving defendant must establish, prima facie, that the time in which to commence the action has expired ( see Beizer v. Hirsch, 116 A.D.3d 725, 983 N.Y.S.2d 615;Zaborowski v. Local 74, Serv. Empls. Intl. Union, AFL–CIO, 91 A.D.3d 768, 768–769, 936 N.Y.S.2d 575). The burden then shifts to the plaintiff to raise a triable issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable ( see Beizer v. Hirsch, 116 A.D.3d 725, 983 N.Y.S.2d 615;Zaborowski v. Local 74, Serv. Empls. Intl. Union, AFL–CIO, 91 A.D.3d at 769, 936 N.Y.S.2d 575).
Here, the defendant Ronen Shiponi established his prima facie entitlement to dismissal of the complaint based on the expiration of the three-year statute of limitations applicable to the cause of action, inter alia, to recover damages for legal malpractice ( see CPLR 214[6] ). In opposition, however, the plaintiffs raised a question of fact as to whether the applicable statute of limitations was tolled by the doctrine of continuous representation ( see Bill Kolb, Jr., Subaru, Inc. v. LJ Rabinowitz, CPA, 117 A.D.3d 978, 980, 986 N.Y.S.2d 523;Macaluso v. Del Col, 95 A.D.3d 959, 960–961, 944 N.Y.S.2d 589;Leon Petroleum, LLC v. Carl S. Levine & Assoc., P.C., 80 A.D.3d 573, 574, 914 N.Y.S.2d 661;Kennedy v. H. Bruce Fischer, Esq., P.C., 78 A.D.3d 1016, 1017–1018, 912 N.Y.S.2d 590;Rehberger v. Garguilo & Orzechowski, LLP, 50 A.D.3d 760, 760, 854 N.Y.S.2d 650;Deutsch v. Polly N. Passonneau, P.C., 297 A.D.2d 571, 747 N.Y.S.2d 164). Accordingly, the Supreme Court should have denied that branch of Shiponi's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred. MASTRO, J.P., DICKERSON, COHEN and MILLER, JJ., concur.