Santulli v. Englert, Reilly & McHugh, P. C.

164 A.D.2d 149, 563 N.Y.S.2d 548, 1990 N.Y. App. Div. LEXIS 13587

Opinions

OPINION OF THE COURT

Mercure, J.

Plaintiff retained defendant to perform legal services in connection with the sale of plaintiff’s hardware business, including preparation of a mortgage to secure payment of a portion of the purchase price. Following the closing on the transaction, the mortgage was recorded on February 18, 1981. In May 1983, plaintiff sought defendant’s assistance in collecting amounts due on the mortgage. When these efforts proved unsuccessful, plaintiff inspected the recorded mortgage and discovered that it described only a portion of the real property intended to be mortgaged, a fact thereafter called to defendant’s attention. In August 1983, plaintiff was advised that defendant was disqualified from representing him in a mortgage foreclosure action.

This action, alleging causes of action for malpractice and breach of contract, was commenced on September 18, 1985. Defendant answered, generally denying the allegations contained in the complaint and asserting various affirmative defenses, including that the action was barred by the applicable Statute of Limitations and failure to state a cause of action. Following discovery, defendant moved for summary judgment dismissing the complaint on those two grounds. Supreme Court denied defendant’s motion, concluding that there was a question of fact as to whether plaintiff’s second cause of action sounds in contract, thereby triggering application of a six-year Statute of Limitations. This appeal by defendant ensued.

Initially, plaintiff urges that application of the continuous representation doctrine tolled the Statute of Limitations on his malpractice cause of action until August 9, 1983, when defendant informed him that it could no longer represent him in the foreclosure action. In our view, the record fails to support this argument. There was not "an uninterrupted course of reliance and services related to the particular duty breached” (National Life Ins. Co. v Hall & Co., 67 NY2d 1021, 1023) and, accordingly, the doctrine of continuous representa tion does not apply (cf., Stampfel v Eckhardt, 143 AD2d 184, 185).

We conclude, nonetheless, that the action is not time barred. The Court of Appeals has made it clear that an action, such as this, for damages to property and pecuniary interests, which has its genesis in the contractual relationship of the parties, is governed by the six-year Statute of Limitations of CPLR 213 (2), whether pleaded in tort for professional malpractice or in contract for nonperformance of particular provisions of the contract (Sears, Roebuck & Co. v Eneo Assocs., 43 NY2d 389, 396; see, National Life Ins. Co. v Hall & Co., supra; Video Corp. v Flatto Assocs., 58 NY2d 1026, 1028; Bloom v Kernan, 146 AD2d 916, 917-918).

Footnotes

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* To the extent that Albany Sav. Bank v Caffry, Pontiff, Stewart, Rhodes & Judge (95 AD2d 918) and Brainard v Brown (91 AD2d 287) require a different conclusion, we expressly overrule them.

However, we must take care not to confuse our consideration of the application of the six-year contract Statute of Limitations with the distinct question of whether the complaint states a contract cause of action (see, e.g., Bloom v Kernan, supra, at 917-918). Here, because there was no express promise to obtain a specific result, the second cause of action, alleging breach of contract, should have been dismissed (see, Badik v Murphy, 160 AD2d 1199; Pacesetter Communications Corp. v Solin & Breindel, 150 AD2d 232, 236, lv dismissed 74 NY2d 892).

While we acknowledge that the Court of Appeals has never applied the six-year contract Statute of Limitations to a legal malpractice action, we fail to perceive a meaningful distinction between a malpractice action brought against a lawyer and an action based upon the malpractice of another professional, so long as the remedy sought is damages for property or pecuniary loss (see, Hoerger v Board of Educ., 127 AD2d 88, 98). The Second Department has directly applied the holding of Video Corp. v Flatto Assocs. (58 NY2d 1026) to legal malpractice actions (see, Sager v DeRiggi, 161 AD2d 571; Sinopoli v Cocozza, 105 AD2d 743). Of greater significance, this court, as recently as January 1989, held that the six-year Statute of Limitations applies in an action against an attorney " 'for failure to exercise due care in the performance of a contract [for professional services]’” (Bloom v Kernan, 146 AD2d 916, 917, supra, quoting Video Corp. v Flatto Assocs., supra, at 1028).