Hasty Hills Stables, Inc. v Dorfman, Lynch, Knoebel & Conway, LLP

[*1] Hasty Hills Stables, Inc. v Dorfman, Lynch, Knoebel & Conway, LLP 2005 NY Slip Op 51487(U) Decided on September 19, 2005 Supreme Court, Rockland County Smith, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 19, 2005
Supreme Court, Rockland County

Hasty Hills Stables, Inc. and James Barnard, Plaintiff,

against

Dorfman, Lynch, Knoebel & Conway, LLP, f/k/a Dorfman, Lynch & Knoebel, Defendant.



478/05



Greene & Zinner, P.C.

Attys. for plaintiffs

202 Mamaroneck Avenue

White Plains, New York 10601

McDonough Marcus Cohn Tretter Heller

& Kanca, LLP

Attys. for defendants

145 Huguenot Street

New Rochelle, New York 10801

Mary H. Smith, J.

This is an action for legal malpractice relating to defendant's representation of plaintiffs in [*2]connection with plaintiffs' leasing of certain acreage in Haverstraw for use as a horse stable, to which complaint defendant has interposed the affirmative defense, among others, of this action being time-barred by the three year statute of limitations.

Plaintiff Barnard was the owner and operator of plaintiff Hasty Hills Stables, Inc. In 1996, Barnard brokered a sale between seller Haverstraw Road Lands, Inc. and buyer Patrick Farms, LLC for 130 acres of land which included the more than 22 acres upon which Hasty Hills Stables operated. Plaintiffs contend that they specifically had retained defendant to help with the Lease negotiations with the new owner and "to review the terms of the Lease and make sure that the Lease would provide Hasty Hills with the right to occupy the premises for the next 50 years." The Lease was executed on August 7, 1996, and included paragraph 15 which provided that any subsequent purchaser of the land would have the right to terminate plaintiffs' Lease on four months'[FN1]

At around this same time, Barnard was involved in brokering a sale of the same property from Patrick Farms, LLC to the Town of Clarkstown, which closing took place on October 10, 1996. Defendant attended this closing on plaintiff's behalf.

Although the purchaser of the subject land, the Town of Clarkstown, had agreed to honor the subject Leasing Agreement during its ownership of the subject property and indeed had accepted assignment of the Lease, the Town, in May, 1997, forwarded to plaintiffs a revised lease proposing to reduce plaintiffs' leasehold by 1 ½ acres. Plaintiffs, on defendant's advice, had refused to sign the proposed revised lease.

Then, in June, 1998, the Town notified plaintiffs that they no longer could use certain trails and fields on a portion of the property included in plaintiffs' Lease. Again, plaintiffs sought defendant's counsel with respect to same, and it was the parties' stated opinion at that time that the Town's attempt to restrict trail and field usage was actually a continuing attempt to have plaintiffs relinquish 1 ½ acres of the leased property to the Town.

Thereafter, on September 30, 1999, the Town of Ramapo, the municipality in which the subject land actually is located, issued Code violations against plaintiff's leased property. Plaintiffs believe same was issued at the Town of Clarkstown's urging. Defendant, on plaintiffs' behalf, appealed the Code violations to the Zoning Board of Appeals, resulting in the Zoning Board's affirmance of the issued violations against plaintiffs by Decision rendered in August, 2001.

Plaintiffs, represented by defendant, thereafter commenced an Article 78 proceeding, to challenge the Zoning Board's Decision, which petition ultimately was denied by this Court (Bergerman, J.), by Order, dated April 10, 2002.

Also, defendant had commenced on plaintiffs' behalf, in 2000, an action against the Town of Clarkstown for monetary damages for the Town's allegedly unlawful efforts to divest plaintiffs of the 1 ½ acres of their leasehold and evict plaintiffs by having the Town of Ramapo issue Code violations. According to plaintiff, defendant "viewed this litigation against the Town as an attempt [*3]to rectify, to some degree, Mr. Knoebel and DLKC' s malpractice of giving me erroneous advice on the Lease."

Meanwhile, in July of 2001, the Town sold the subject property and same came under the ownership of non-party Scenic Development LLC. Scenic eventually exercised its right under paragraph 15 of the lease to terminate plaintiff's lease. Litigation ensued, plaintiffs being represented by defendant. Ramapo Town Court issued an Order, dated December 23, 2002, declaring paragraph 15 of the lease valid and enforceable; plaintiff was evicted from the premises in May, 2003.

This action for legal malpractice was thereafter commenced on January 25, 2005. According to plaintiff, the parties' professional relationship did not terminate until May 19, 2004, as evidenced by defendant's letter to plaintiffs acknowledging termination of the attorney - client relationship. Thus, plaintiffs insist that the commencement of this action on January 25, 2005, was timely, notwithstanding that the actions which support the legal malpractice actually occurred in 1996, because all of defendant's subsequently rendered legal services were directed at protecting plaintiffs' interest in the leased property and safeguarding their right to continue to occupy the property. Plaintiffs support their position that the continuous representation doctrine renders this action timely through the above-summarized detailed history of the parties' professional relationship, as supported by various submitted documents and letters, and plaintiffs' further unrefuted claim that in the summer of 2003, Mr. Lynch, a principal in defendant, "asked [Mr. Barnard] to execute a release in favor of Mr. Knoebel and DLKC in exchange for a more favorable fee arrangement." Relying upon Pellati v. Lite & Lite, 290 AD2d 544, 545 (2nd Dept. 2002), plaintiffs argue that this attempt by defendant to rectify its alleged malpractice further supports application of the continuous representation doctrine and that plaintiffs are entitled to dismissal of the interposed statute of limitations defense.

Defendant opposes the motion and is cross-moving for summary judgment dismissing the action, arguing that any alleged malpractice occurred in 1996, thus rendering the commencement of this action more than three years later untimely. Defendant maintains that at the time Patrick Farms was considering selling the property, including plaintiffs' leased property, to the Town in 1996, plaintiff Barnard, who was aware of paragraph 15 in the Lease because he himself had negotiated the Lease, was concerned about the Town's agreeing to accept assignment of plaintiffs' Lease. Therefore, defendant claims, as supported by Barnard's statement in his affidavit dated June 30, 2000, which was submitted in connection with the Article 78 litigation, that Barnard had "hired Mr. Knoebel to attend the closing to ensure that the lease was assigned to the town," which indeed was accomplished. Defendant claims that this was the sole purpose for plaintiffs' hiring of defendant in October, 1996; it was not, as plaintiffs claim, to review the terms of the Lease drafted by another attorney and previously executed by plaintiffs. Any malpractice that occurred when the Lease first was entered into in August, 1996, was, according to defendant, time-barred at the time of commencement of this action in January, 2005.

Relying upon the holding in Dignelli v. Berman, 293 AD2d 565 (2nd Dept. 2002), defendant argues that the continuous representation doctrine is inapplicable to toll the limitations period. From defendant's perspective, the fact that it had continued to represent plaintiffs until recently in various matters which involved plaintiffs' leased land is irrelevant since none of the subsequent representation had anything to do with the Town's assuming the Lease, which it insists was the sole reason for plaintiffs' hiring them.

It is not disputed that without application of the continuous representation doctrine, plaintiffs' [*4]instant action is time-barred.

While a cause of action for legal malpractice accrues on the date on which the claimed malpractice occurred, under the rule of continuous representation, the Statute of Limitations is tolled while representation on the same matter in which the malpractice is alleged is ongoing. However, the mere continuity of a general professional relationship is not enough to toll the statute of limitations. Glamm v. Allen, 57 NY2d 87, 93-94 (1982); Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 507 (2nd Dept. 1990). Rather, for the doctrine to apply, "'there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney' (citation omitted)," Kanter v. Pieri, 11 AD3d 912 (4th Dept. 2004) and, further, it must be shown both that the defendant continued to represent plaintiff within the limitations period and that the representation was for the performance of the same or related services on the very matter that is the subject of the malpractice action. See Shumsky v. Eisenstein , 96 NY2d 166, 168 (20010; Amendola v. Kendzia, 17 AD3d 1105 (4th Dept. 2005; Pellati v. Lite & Lite, 290 AD2d 544 (2nd Dept. 2002); Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, supra.

After this Court's careful consideration of the record at bar and the parties' respective arguments, the Court denies both plaintiffs' motion to strike the statute of limitations affirmative defense and defendant's motion for summary judgment, finding that there exists triable issues of fact as to whether the doctrine of continuous representation applies, precluding the requested relief. Firstly, the Court perceives a fact issue as to plaintiffs' purpose for hiring defendant in 1996, whether it was to insure plaintiffs' right to occupy the land for the next fifty years, as plaintiffs' argue, or whether simply to get the Town of Clarkstown to accept assignment of the Lease, as defendant contends. If the former, then the Court finds that a further triable issue of fact exists as to whether this action is tolled by the continuous representation doctrine based upon all of defendant' s subsequent representation of plaintiff relating exclusively to plaintiffs' right to continue to occupy the land. It is this argued related nature of defendant's rendered legal services which the Court finds distinguishes this action from Dignelli v. Berman, supra, relied heavily upon by defendant. Indeed, the Dignelli Court specifically observed that some of defendant Bergman's representation of the Dignelli plaintiff "was incidentally connected to the day-to-day business of the horse farm," but that "defendants also gave advice on the general business dealing of the individual plaintiffs which was wholly unrelated to the horse farm." Id. at 565.

Moreover, there appears to be a further issue as to whether defendant had attempted to rectify an act of malpractice either or both through requesting plaintiffs execute a release and/or the commencement of the action against the Town of Clarkstown in 2000, so as to toll the running of the statute of limitations. See Gravel v. Cicola, 297 AD2d 620 (2nd Dept. 2002); Pellati v. Lite & Lite, 290 AD2d 544, supra; Luk Lamellen U. Kupplungbau GmbH v. Lerner, 166 AD2d 505, supra.

The parties are reminded that there is a pre-trial conference scheduled for 10:15 a.m. on October 6, 2005. This date may not be adjourned without the Court's consent. Any party's failure to appear may result in the imposition of costs and/or sanctions.





Dated: September 19, 2005

New City, New York_________________________

MARY H. SMITH [*5]

J.S.C Footnotes

Footnote 1:Plaintiffs allege in their complaint that another non-party attorney originally had prepared the Lease for plaintiffs and while plaintiffs affixed their signature thereto, the executed Lease was not delivered to Patrick Farms, on plaintiffs' instruction, because plaintiffs discharged the drafting attorney and wanted attorney Robert Knoebel to review same.