Schleidt v. StamlerSchleidt v. Stamler
—Order, Supreme Court, New York County (Irving Kirschenbaum, J.), entered August 17, 1983, which granted defendant’s motion to dismiss the complaint for failure to state a cause of action and denied as moot plaintiff’s motions for partial summаry judgment and dismissal of defendant’s Statute of Limitations affirmative defense, reversed, on the law and in the exеrcise of discretion, without costs, defendant’s motion to dismiss for failure to state a cause of action is denied, defendant’s Statute of Limitations defense is dismissed, and, sua sponte, 111 East 55th Park Coffee Shop, Inc., is joined as а party plaintiff pursuant to CPLR 1003.
In March, 1979 plaintiff retained defendant as his attorney to represent him and his two sisters in the purchase of a coffee shop then owned by Datom Food Corp. and locatеd at 111 East 55th Street in Manhattan. Defendant formed a corporation named 111 East 55th Park Coffee Shoр, Inc. (Ill East) for the purpose of taking title to the premises. A contract of sale between Datom and the 111 East corporation was executed on March 21, 1979, and provided, inter alia, for a $3,000 escrow to insurе that all taxes had been paid, and individual indemnification by Datom’s principal for tax claims against 111 Eаst. The closing took place on April 5, 1979.
In June, 1981 plaintiff was advised by the New York State Department of Taxation and Finance that Datom had failed to pay sales taxes of between $20,000 and $25,000, and that 111 East was liable for these back taxes. On March 24,1982 plaintiff
Following joinder of issue plaintiff moved to dismiss the Statute of Limitations defense and for partial summary judgment on liability only. Defendant cross-moved for summary judgment, claiming that since the 111 East corporation purchased the coffee shop and was liable for unpaid taxes, the individual plaintiff suffered no damages and thеrefore had no cause of action for malpractice. Special Term dismissed the cоmplaint essentially upon a finding that the individual plaintiff had suffered no monetary damages as a result of thе alleged malpractice, and accordingly did not reach the issues raised by plaintiff’s motion for partial summary judgment.
The record reveals that 111 East corporation as purchaser, not the individual plaintiff, is liable to the Department of Taxation for the seller’s unpaid taxes. The plaintiff, as an individual shareholder, has no right to bring an action in his own name for a wrong committed against the corporation. (General Motors Acceptance Corp. v Kalkstein,
With regard to defendant’s affirmative defеnse of Statute of Limitations, we find the action to have been timely commenced within three years. Plaintiff’s cause of action arose, at the
We note further that the Statute of Limitations is not a time bar to the assertion by the corporation of the malpractice claim pursuant to the joinder ordered herеin. “This court has been very liberal in allowing the addition or substitution of new parties, even after the Statute оf Limitations has run, where the cause of action remains unchanged.” (Van der Stegen v Neuss, Hesslein & Co.,
With regard to plaintiff’s motion for partial summary judgmеnt, we are satisfied that there are factual issues as to whether defendant’s actions under the circumstances presented constituted professional malpractice. Concur — Sandler, J. P., Ross, Carro, Silverman and Kassal, JJ.