Opinion
March 7, 1994
Appeal from the Supreme Court, Westchester County (Wood, J.).
Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the defendants appearing separately and filing separate briefs.
While the plaintiffs seek to establish on appeal, as they did in opposition to the motion, that this Court should apply a novel rule pertaining to the accrual of a cause of action for legal malpractice, there is no basis for not applying the existing rule that such an action accrues upon the date on which the malpractice occurred (see, Glamm v. Allen, 57 N.Y.2d 87, 93; McDermott v. Torre, 56 N.Y.2d 399, 406; Pittelli v. Schulman, 128 A.D.2d 600, 601). This accrual rule, when applied in conjunction with the "continuous representation" doctrine, leads us to conclude that the running of the statutory period was tolled only until March 22, 1976 (see, Glamm v. Allen, supra, at 93-94; Pittelli v. Schulman, supra, at 601; see also, Winkler v Messinger, Alperin Hufjay, 147 A.D.2d 693) and therefore, that the action was properly dismissed as time-barred.
In so holding, we further conclude that the plaintiffs have failed to demonstrate that the defendants should be equitably estopped from raising their affirmative defense of the Statute of Limitations (cf., Simcuski v. Saeli, 44 N.Y.2d 442, 448-449; Park Assocs. v. Crescent Park Assocs., 159 A.D.2d 460, 461). Furthermore, equitable estoppel is unavailable to the plaintiffs because of their failure to assert it in their complaint (see, Florio v. Cook, 48 N.Y.2d 792, 793; Stafford v. Bickford, 159 A.D.2d 456, 457).
Finally, we decline to impose sanctions against the plaintiffs as requested by the defendant Butowsky. Sullivan, J.P., Joy, Friedmann and Goldstein, JJ., concur.