Tsafatinos v. Law Office of Sanford F. Young, P.C.

Oct 22, 2014
2012-10613
Versions:121 A.D.3d 969
995 N.Y.S.2d 509
994 N.Y.S.2d 902

In an action, inter alia, to recover damages for legal malpractice, the plaintiff Stamatiki Tsafatinos appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Martin, J.), dated July 5, 2012, as granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, the cause of action alleging legal malpractice insofar as asserted by him.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiffs commenced this action to recover damages for, among other things, legal malpractice. The defendants moved pursuant to CPLR 3211 (a) (5) to dismiss, inter alia, the cause of action alleging legal malpractice on the ground that it was barred by the applicable statute of limitations. The Supreme Court granted that branch of the defendants’ motion.

On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a defendant must establish, prima facie, that the time within which to sue has expired (see Bullfrog, LLC v Nolan, 102 AD3d 719, 719 [2013]). Once that showing has been made, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period (see id.).

Here, the defendants sustained their initial burden by demonstrating that the cause of action alleging legal malpractice accrued, at the latest, on April 22, 2008, a date more than three years before the commencement of this action (see CPLR 214 [6]; Landow v Snow Becker Krauss, P.C., 111 AD3d 795, 796 [2013]; Bullfrog, LLC v Nolan, 102 AD3d at 719). In opposition, the appellant failed to raise a question of fact (see Bullfrog, LLC v Nolan, 102 AD3d at 719; Daniels v Turco, 84 AD3d 858, 858-859 [2011]; Piliero v Adler & Stavros, 282 AD2d 511, 511-512 [2001]). Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was to dismiss, as time-barred, the legal malpractice cause of action insofar as asserted by the appellant.

Mastro, J.P., Sgroi, Cohen and Miller, JJ., concur.