Frost Line Refrigeration, Inc. v. Gastwirth, Mirsky & Stein, LLP

25 A.D.3d 532, 806 N.Y.S.2d 436

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 2006
• Status: Published

Opinion

In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Davis, J.), dated February 25, 2005, which granted the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) as time-barred and denied, as academic, their cross motion to amend the caption and to preclude the defendants from asserting the affirmative defense of the statute of limitations.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the defendants’ motion to dismiss this legal malpractice action, commenced on October 22, 2004, as time-barred. The three-year statute of limitations began to run on September 10, 2001, when the plaintiff Arthur Best signed a consent to change attorney form, relieving the defendant Gastwirth, Mirsky & Stein, LLP, as counsel in the underlying action (see CPLR 214 [6]; Sommers v Cohen, 14 AD3d 691 [2005]; Marro v Handwerker, Marchelos & Gayner, 1 AD3d 488 [2003]; Daniels v Lebit, 299 AD2d 310 [2002]; Wester v Sussman, 287 AD2d 618 [2001]).

The plaintiffs’ contention that the legal malpractice cause of action did not accrue until the underlying action was dismissed on March 11, 2004, is without merit.

In light of our determination it is unnecessary to address the plaintiffs’ remaining contentions. H. Miller, J.P., Adams, Luciano and Rivera, JJ., concur.