Loria v. Cerniglia

Appellate Division of the Supreme Court of New York

Loria v. Cerniglia

69 A.D.3d 583, 891 N.Y.2d 286

Appellate Division of the Supreme Court of the State of New York·Decided January 5, 2010·Published·Cited by 8 cases

Opinion

The Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the first cause of action, alleging legal malpractice, as time-barred. The action was commenced on August 14, 2008, and the three-year statute of limitations (see CPLR 214 [6]) began to run on August 12, 2005, when the plaintiff signed a consent to change attorney form, relieving the defendant as counsel in the underlying action (see Frost Line Refrig., Inc. v Gastwirth, Mirsky & Stein, LLP, 25 AD3d 532, 532-533 [2006]; Sommers v Cohen, 14 AD3d 691, 692 [2005]; Marro v Handwerker, Marchelos & Gayner, 1 AD3d 488 [2003]; Daniels v Lebit, 299 AD2d 310 [2002]).

However, the second cause of action, alleging that the defendant charged an excessive fee, was not duplicative of the first cause of action, and should not have been dismissed (see Boglia v Greenberg, 63 AD3d 973, 976 [2009]).

[584]*584The plaintiff’s remaining contentions are without merit. Rivera, J.E, Miller, Leventhal and Chambers, JJ., concur.

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The Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the first cause of action, alleging legal malpractice, as time-barred. The action was commenced on August 14, 2008, and the three-year statute of limitations (see CPLR 214 [6]) began to run on August 12, 2005, when the plaintiff signed a consent to change attorney form, relieving the defendant as counsel in the underlying action (see Frost Line Refrig., Inc. v Gastwirth, Mirsky & Stein, LLP, 25 AD3d 532, 532-533 [2006]; Sommers v Cohen, 14 AD3d 691, 692 [2005]; Marro v Handwerker, Marchelos & Gayner, 1 AD3d 488 [2003]; Daniels v Lebit, 299 AD2d 310 [2002]).

However, the second cause of action, alleging that the defendant charged an excessive fee, was not duplicative of the first cause of action, and should not have been dismissed (see Boglia v Greenberg, 63 AD3d 973, 976 [2009]).

[584]*584The plaintiff’s remaining contentions are without merit. Rivera, J.E, Miller, Leventhal and Chambers, JJ., concur.

Loria v. Cerniglia, 69 A.D.3d 583, 891 N.Y.2d 286 (N.Y. Ct. App. 2010).

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Opinion

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