662 NYS2d 362 | N.Y. Sup. Ct. | 1997
OPINION OF THE COURT
In the above two actions, which were consolidated by order dated January 10, 1995, defendant John L. Bell makes two applications to the court. First, he moves for summary judgment dismissing plaintiffs’ two complaints dated December 11, 1992
The first motion for summary judgment is denied as to the first action and granted as to the second action as hereinafter set forth. The second motion is denied in all respects.
Since this matter involves claims of legal malpractice, the underlying legal matter in which the plaintiffs retained the defendant must be recited. The plaintiff, White of Lake George, Inc. (hereinafter WLG),
Plaintiffs’ claim in the first action herein that the defendant, as their attorney, failed to protect their rights under the lease, failed to properly advise them of their obligations under the lease, and failed to conduct the litigation properly. As a result plaintiffs claim that the defendant’s negligence was the proximate cause of their having to pay the sum of $150,000 to the landlord, of the loss of the lease and of the loss of the use of the leased premises for the balance of the term. Plaintiffs also assert a second cause of action arising out of Bell’s representation based on breach of contract.
The essence of plaintiffs’ claims is that Bell should have obtained a "Yellowstone injunction” (see, First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630) in which the status quo of a lease relationship will be maintained while the parties adjudicate an issue raised concerning the terms of the lease. Instead, plaintiffs maintain that Bell’s negligent advice and representation placed them in a position in which they were liable for accelerated rent and other charges under the lease, a sum far greater than the disputed parking lot charges.
In the second action the plaintiffs allege that Bell fraudulently concealed material facts from the plaintiffs for the purpose of inducing them to settle the landlord-tenant lawsuit. It is claimed that Bell concealed certain critical facts in order to cover up his own failures and negligence in handling the lawsuit. Plaintiffs contend that such conduct by Bell was fraudulent and violated Judiciary Law § 487. Treble damages and punitive damages are requested.
MOTION NO. 2: STATUTE OF LIMITATIONS
In September 1996 CPLR 214 (6) was amended to provide a three-year Statute of Limitations for malpractice actions (other than medical, dental or podiatric), irrespective of whether the claim was for breach of contract or tort.
The first action herein was commenced on December 11, 1992, some four years after Bell’s representation of the plaintiffs was concluded. If the proposed sixth affirmative defense is permitted to be added to the answer and the amended statute is to be given retroactive effect, then both causes of action of the first complaint would be time barred as that action was commenced more than three years after the conclusion of the attorney-client relationship. The defendant argues that the purpose of the amendment of the statute was to reassert the intention of the original statute that the Statute of Limitations for general malpractice, in this case legal malpractice, was intended to be three years regardless of whether the theory of the case was based on breach of contract or tort. This "remedial amendment” theory is unpersuasive since it has been 20 years since the Court of Appeals held that the Statute of Limitations to be applied in a professional malpractice case was determined by the remedy sought rather than the theory of liability (Sears, Roebuck & Co. v Enco Assocs., 43 NY2d 389, 394-395). Additionally, the court pointed out in Elghanian v Eaton & Van Winkle (NYLJ, June 24, 1997, at 26, cols 5, 6 [Sup Ct, NY County], citing Durkin v Shea, 957 F Supp 1360) that the initial proposed language of CPLR 214 (6) provided that the three-year limitation would apply to malpractice actions based in tort or on breach of contract; however, that language was not included by the Legislature in the final version of the statute.
If the proposed amendment is meritorious and there is no prejudice to the other party, leave to amend pleadings under CPLR 3025 (b) should be granted freely (Sharapata v Town of Islip, 82 AD2d 350, 362; State of New York v Ladd’s Gas Sta., 198 AD2d 654). In this case, however, the court determines that the proposed amendment to the defendant’s answer lacks merit because the amended statute should not be applied retroactively to cases in which the lawsuit had been commenced prior to the enactment of the amendment.
The Court of Appeals in Santulli v Englert, Reilly & McHugh (78 NY2d 700) held that the time for bringing an action for legal malpractice is six years from the date of accrual where the liability arose from an agreement retaining the attorney and the remedy sought is damages for pecuniary or property loss. "The utilitarian view under our system is that the only law we have is what the courts ultimately say we have, which in New York means that a Court of Appeals say is in every real sense the ultimate say. Hence, from the time of Santulli in 1992 until the time of the amendment of CPLR 214(6) in 1996, the law was that there was six years in which to sue on a malpractice claim against a lawyer. Any attempt to curtail the applicable time period retroactively would therefore implicate due process considerations.” (Siegel, Outside Counsel, Conflicts Over Retroactivity of 3 New Laws: Malpractice, Employers, Summary Judgment, NYLJ, Mar. 31, 1997, at 1, col 1, at 4, col 4.)
The amendment to CPLR 214 (6), setting the limitation period at three years irrespective of the theory of breach of contract or tort, states that the statute is to take effect immediately; no provisions are made for lawsuits already commenced which had relied on the case law interpretation of the former statute, nor to claims in existence at the time of amendment but not sued upon. In order to pass constitutional muster, legislation which shortens a period of limitations must include a provision for a reasonable length of time in which to commence an action under the shortened period (see, Gilbert v Ackerman, 159 NY 118; McGuirk v City School Dist., 116 AD2d 363). In this case commenced prior to the amendment to the statute, the court will not penalize litigants for following the
Accordingly, the defendant’s motion to amend his second amended answer is denied in all respects.
Plaintiff White Management Corp. is the successor in interest to White of Lake George, Inc.