Mortley v Tucker

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Mortley v Tucker 2019 NY Slip Op 32577(U) July 15, 2019 Supreme Court, Queens County Docket Number: 711376/18 Judge: Robert I. Caloras Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] QUEENS COUNTY CLERK 07/25/2019 03:18 PM NYSCEF DOC. NO. 40 INDEX NO. 711376/2018 RECEIVED NYSCEF: 07/25/2019 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY PRESENT: HON. ROBERT l. CALORAS PART 36 Justice -----------------------------------------------------~-----------:X: GEORGE M.ORTLEY, Index No. 711376/18 Motion .Date: 5/16/19 Motion Cal. No. 30 Seq. No. l Plaintiff, -against- FILED CHARLES TUCKER, JR. ESQ. and TUCKER LAW GROUP, LL, JUL 2 5 2019 Defendants ------------------------------------------------------------------X COUNTY CLERK QUEENS COUNTY The following papers numbered E5··E:25, E27-E3I, E33-E38 read on this motion by defendants for an order dismissing this action with prejudice against defendants as failing to state a cause of action pursuant to CPLR § 3211(7), or in the alternative, for an order dismissing this action with prejudice as time batTed by the statute of limitations pursuant to CPLR 3211(5) and 214(6) PAPERS N.11MBERED E5-E9 Notice of Motion-Affirmation-Exhibits ...................... . El O-E25 Affirmation in Opposition-Affirmation-Exhibits ........ . E27-E30 Reply Affirmation .. Exhibits ......................................... . Letter, March 26, 2019 ................................................ . E31 Sur Reply-Exhibits ....................................................... . E33-E38 Upon the foregoing papers, it is ordered that defendants', Charks Tucker, Jr., Esq. and Tucker Law Group, LLP, ("defendants" or "Tucker") motion is detennined as follows: This is a legal malpractice action that stems from an underlying motor vehicle case that was filed in Supreme Court, Bronx County under Mortley v Stanislas et al., Index No. 302297/11 ("Action No. I"). It is undisputed that on January 30, 2015, Hon. Laura Douglas issued an order granting defendants' motion to strike the complaint in Action No. l. In this decision, Hon. Douglas stated that "the motion to strike plaintiffs complaint for failure to prosecute is granted. Plaintiff failed to oppose the motion after being granted an adjournment for that purpose". In the Complaint, plaintiff alleges, among other things, the following: that on or about October 15, 2013, plaintiff retained the defondants to represent him in Action No. 1. On or Page -1- 1 of 5 [*FILED: 2] QUEENS COUNTY CLERK 07/25/2019 03:18 PM NYSCEF DOC. NO. 40 INDEX NO. 711376/2018 RECEIVED NYSCEF: 07/25/2019 about October 15, 2013, defendants filed a Notice of Appearance in Action No. l. In or about June 2014, defendants were served with a 90 Day Notice in Action No. 1, and that defendants failed to respond to said Notice. In or about November 2014, defendants in Action No. l filed a motion to dismiss the complaint, pursuant to CPLR 3216, which was served upon the defendants. Thereafter, defendants requested and received an adjournment of the motion to dismiss plaintiff's complaint from Ikcember 19, 20.14 to January 30, 2015. On January 30, 2015, defendants were still plaintiffs attorney of record in Action No. 1, and failed to respond to the motion to dismiss. Since January 30, 2015, defendants failed to advise plaintiff that Action No. 1 was dismissed. Defendants now move for an order dismissing this action for failing to state a cause of action pursuant to CPLR 3211(7), or in the alternative, for an order dismissing this action as time barred by the statute oflimitations pursuant to CPLR 3211(5) and 21.4(6). Defendants assert that the alleged malpractice did not occur on their part, nor were they the proximate cause of the plaintiff's injury. ln the alternative, defimdants argue that plaintiffs claims should be dismissed as time barred by the statute of limitations because Action No. 1 was dismissed on January 30, 20 LS, and plaintiffs Complaint alleging legal malpractice against the defendants was filed on July 24, 2018. Defendants fu1ther argue that plaintiff did not plead suflicient facts to support a claim under the continuous representation doctrine to toll the statute of limitations. As such, defendants argue that the Complaint should be dismissed pursuant m CPLR 3211 (a)(S). In opposition, plaintiff has submitted, amongst other things, the following: retainer agreement with defendants; plaintiff and Dominick Lavelle, Esq. ("Lavelle") deposition transcript; attorney fee agreement with defendants; defendant's Notice of Appearance in Action No. 1; request for an adjournment in Action No. l; 90 Day Notke; motion to dismiss filed in Action No. l, .Hon. Douglas' order, issued on January 30, 2015; and a consent to change attorney. Plaintiffargm's that the motion should be denied as procedurally defective, because defendants failed to attach the pleadings to the instant motion. Notwithstanding defendants' failure to attach the pleadings, plaintiff argues that the Complaint states a cause of action, and claims that due to defendants' malpractice and failure to prosecute plaintiffs claim, Action No. l was dismisst,d. In addition, plaintiff argues that his cause of action for malpractice did not accrue until, at the earliest, September 14, 2015 when Artion No. 1 was ultimately dismissed and plaintiff had all infornrntion necessary to bring forth the malpractice action. Plaintiff claims that on Septembt'r 9, 2010, he retained Dominick Lavelle, Esq. (.. Lavelle") to commence suit in Acri on No. 1. Lavelle commenced Action No. 1 on or about February 9, 2011. Plaintiff Page -2- 2 of 5 [*FILED: 3] QUEENS COUNTY CLERK 07/25/2019 03:18 PM NYSCEF DOC. NO. 40 INDEX NO. 711376/2018 RECEIVED NYSCEF: 07/25/2019 claims that due to a lack of responsiveness from the Lavelle's office, he contacted defendants to review his case. On or about October 15, 2013, Tuck<~r had plaintiff sign a retainer agreement. On October 23, 2013, Tucker filed a Notice of Appearance, noting that he was retained by plaintiff Thereafter, Tucker filed a "Motion Requesting Adjournment," on October 24, 20 J3. In this request, Tucker stated that he had been retained by plaintiff as of October 18, 20 l 3, and requested that the Court adjourn the pending motion in Action No. I to November 14, 2013. Plaintiff argues that despite having filed a Notice of Appearance, Tucker failed to submit opposition papers in response to the motion to dismiss in Action No. 1. As a result, the motion to dismiss was granted and Action No. l was dismissed. Plaintiff claims that Tucker failed to advise him that Action No. l was dismissed. On February 26, 2015, plainriffand Lavelle signed a consent to change attorney. Thereafler, Lavelle filed a motion to renew and reargue. In a stipulation, "so ordered" by Hon. Douglas on November 25, 2015, the parties agreed to withdraw the motion to renew and reargue. Accordingly, Hon. Doug.las issued an order, dated November 25, 2015, stating that the motion was resolved pursuant to the stipulation. Since defendants did not sign the consent to change attorney, dated February 26, 2015, plaintiff argues that they were still his attorney of record at the time the motion to renew and reargue was resolved. Therefore, plaintiff argues that the time to commence the instant action for legal malpractice against the defendants was tolled under the continuous representation doctrine, and that the Complaint is not barred by the statute of limirntions. In reply, defendants argue that plaintiff is seeking, in the affirmation in opposition, to allege new facts not pied in the complaint. Spccificaliy, defendants argue that the plaintiff is now alleging that the motion to renew and rcargue was withdrawn on or about September 2015. Based upon this newly alleged fact, defendants argue that the plaintiff is seeking to cure his failure to timely file his Complaint. In the sur reply, plaintiff asse1ts that after his affirmation in opposition was filed, defendant Charles Tucker, Esq. was deposed on March 19, 2019. Plaintiff claims that Mr. Tucker's testimony and corresponding discovery documents confirm that Mr. Tucker docs not have the correct date of injury and thus, the proper time line for the statute of limitations. Plaintiff claims that his cause of action for malpractice did not accrue until at the earliest, September 14, 2015 when Action No. I was ultimately dismissed, and he had all infonnation necessary to bring forth the malpractice action. The branch of the motion seeking to dismiss the Complaint pursuant to CPLR 3211 (a)(?) is determined as follows: On a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 321 l(a)(7), "[tjhc· sole criterion is whether the pleading Page -3- 3 of 5 [*FILED: 4] QUEENS COUNTY CLERK 07/25/2019 03:18 PM NYSCEF DOC. NO. 40 INDEX NO. 711376/2018 RECEIVED NYSCEF: 07/25/2019 states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any caust· of action cognizable at Jaw a motion for dismissal will fail" (Guggenheimer y Ginzbw:g, 43 NY2d 268, 275 [1977] ). "The complaint must be liberally constrned in the light most favorable to the plaintiff and all allegations must be accepted as true" (Podesta v Assumable Homes Dev. ll Corp., 137 AD3d 767, 769 f.2d Dept. 2016"]). Here, the Court finds that the plaintiffs allegations state a viable cause of action against the defendants. lJnder these circumstances, the branch of the motion seeking to dismiss the action pursuant to CPLR 3211 (a)(7) is denied. ]'he branch of the motion seeking to dismi~s Complaint pursuant to CPLR 3211 (a)(5) is dctem1ined as follows: "In moving to dismiss a cause of action pursuant to CPLR 3211 (a)(5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable" (SJs;.in.Irnl_µ~,., lm<.,_.Y....Certilma!l_!l~li1LAc![\".L~Jjymµn,J,JJ'., 149 AD3d 788, 789 [2d Dept. 2017]; see Stewart v GDC Tower at Grevstonc. 138 AD3d 7'29, 729-730 [2d Dept. 2016]). "A legal malpractice claim accrues 'when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court' " CMc,:Cqy_..Y.J'..\:.i.rnn.m.1. 99 NY2d 295, 30 l [2002], quoting_A~*_s:rrnan v Pri>;J;._w_!i\\"..r.h9.~!~£'., 84 NY2d 535, 54 l [1994]). "In most cases, this accrual time is measured from the day an actionable injury occurs, 'even if the aggrieved pa1ty is then ignorant of the wrong or injury'" (McCoy v Feinman, supra at 301, quoting .Acket!J..U!!l_.Y.J'.ri.~:£'....Y.Y'..1!1£rb9..l1§.\:, supra at 54 l ). "A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, nor when it is discovered" (A!iziQ_Y. Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735 [2d Dept. 2015]; see McCoy v Feinman, supra at 301; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1086 [2d Dept. 2016]). "For the continuous representation doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney"' (Stein Indus .. Inc. v Certilman Balin Adler & Hyman, LLP, supra at 789, quoting Luk Lamellen U. Kupplungbau GrnbH v Lerner, 166 AD2d 505, 506 [2d Dept. l 990]). Here, the Court finds that the defendants satisfied their initial burden by demonstrating that the plaintiffs legal malpractice cause of action accrued on .Janua1y 30, 2015, when Hon. Douglas issued the order dismissing Action No. l. Since the plaintiff did not commence this action until July 24, 2018, more than three years later, de fondants demonstrated, prima facie, ihat the legal malpractice cause of action was time-barred (King Page -4- 4 of 5 [*FILED: 5] QUEENS COUNTY CLERK 07/25/2019 03:18 PM NYSCEF DOC. NO. 40 INDEX NO. 711376/2018 RECEIVED NYSCEF: 07/25/2019 Tower Realty Corp. v G & G Funding Corp., 163 AD3d 541 [2d Dept. 2018]). In opposing the defendants' motion, plaintiff failed to raise a question of fact as to whether the continuous representation doctrine tolled the running of the statute of limitations until September 30, 2015. Initially, the Court notes that the order resolving the motion to renew and reargue in Action No. 1 was issued by Hon. Douglas on November 25, 2015, not September 30, 2015, as alleged .in the Complaint and the affirmation in opposition. Plaintiff annexed, as Exhibit "L", to his affirmation in opposition, an order issued by Hon. Douglas on November 25, · 2015, stating that the motion to renew and reargue. Notwithstanding this, the Court finds that the plaintiff wa5 unaware of any need for fuither legal services after Hon. Douglas issued the Janua1y 30, 2015 dismissal order, and then~ was no mutual understanding with the defendants that further services were needed in connection with the specific subject matter out of which the malpractice arose (Shumsky v Eisenstein, 96 NY2d 164 [2001 ]). Moreover, the record does not establish that the plaintiff was left with the reasonable impression that the defendants were actively addressing plaintiffs legal nc,eds (S.l.wm~KY. .Y..t;.i.~.\;.!.l~J\';.ll, supra [200 l ]). Therefore, the plaintiff failed to raise a question of fact as to whether any continued representation by the defendants served to toll the statute of limitations (see King Tower Realty Corn. v G & G Funding Cow., supra]). Accordingly, the branch of the motion .e<king <o ct;,mi'> '""""" '° CPI .R 321 l (•)'5) ;, g<Mt'M_mpbh" ;, di•mi•~d. ~ Dated: .July 15, 2019 ROBERT I. CALORAS, J.S.C. FILED JUL 2 5 2019 COUNTY QUEENsc~~~ Page -5- 5 of 5

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