Win Hay LLC v Chin

Win Hay LLC v Chin 2011 NY Slip Op 02801 Decided on April 7, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 7, 2011
Tom, J.P., Saxe, DeGrasse, Freedman, Abdus-Salaam JJ.
4730 109556/09

[*1]Win Hay LLC, Plaintiff-Respondent,

v

Andrew Chin, Defendant, Andy H. Choi, Defendant-Appellant.



 
Furman Kornfeld & Brennan LLP, New York (Andrew S.
Kowlowitz of counsel), for appellant.
Alfred Lui, New York (Irena Milos of counsel), for respondent.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered December 29, 2009, which, in an action alleging, inter alia, legal malpractice, denied defendant Choi's motion to dismiss the complaint as against him, unanimously reversed, on the law, without costs and the motion granted. The Clerk is directed to enter judgment accordingly.

The documentary evidence refuted plaintiff's allegations that plaintiff retained Choi to represent it in connection with its application for a tax exemption for certain real property (see CPLR 3211[a][1]). Although plaintiff purportedly paid a portion of a retainer fee to Choi, the record shows that the entire amount of the retainer was forwarded to defendant Chin, who admittedly represented plaintiff in connection with the application and who plaintiff had met with prior to issuing the subject payment (see Wei Cheng Chang v Pi, 288 AD2d 378 [2001], lv denied 99 NY2d 501 [2002]).

The record further demonstrates that, other than forwarding the retainer payment to defendant Chin, Choi was not involved in submitting the application, and had no knowledge as to whether Chin had filed the application and the necessary documents on plaintiff's behalf. The record establishes that there was no attorney-client relationship between plaintiff and Choi and accordingly, the complaint is dismissed as against him (see Wei Cheng Chang, 288 AD2d at 381; D'Amico v First Union Natl. Bank, 285 AD2d 166, 172 [2001], lv denied 99 NY2d 501 [2002]).

In any event, plaintiff's claim is barred by the statue of limitations.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 7, 2011 [*2]

CLERK