Babcock v. Donohue

19 A.D.3d 1174, 796 N.Y.S.2d 499, 2005 N.Y. App. Div. LEXIS 6388

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 2005
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Steuben County (Marianne Furfure, A.J.), entered April 23, 2004 in a legal malpractice action. The order, among other things, denied defendant’s motion to dismiss the amended complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order that denied his motion to dismiss the amended complaint in this legal malpractice action and his alternative request for a change of venue. We note that defendant does not address in his brief that part of the order denying his alternative request for a change of venue, and thus we deem abandoned defendant’s appeal from that part of the order (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]). Contrary to defendant’s contention, Supreme Court properly denied the motion insofar as defendant contended that the amended complaint is time-barred. The record establishes that there is an issue of fact whether the statute of limitations was tolled by the continuous representation doctrine (see Gravel v Cicola, 297 AD2d 620 [2002]). Also contrary to defendant’s contention, the court properly denied the motion insofar as defendant contended that the amended complaint fails to state a cause of action. Accepting the allegations in the complaint as true and according plaintiff the benefit of every possible favorable inference, as we must (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we conclude that the amended complaint states a cause of action for legal malpractice. We have considered the remaining contentions of defendant and conclude that they are without merit. Present—Martoche, J.P., Smith, Lawton and Hayes, JJ.