Opinion
No. 176 SSM 21.
Decided June 25, 2009.
APPEALS, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered November 6, 2008. The Appellate Division affirmed two orders of the Supreme Court, New York County (Joan A. Madden, J.; ops 2007 NY Slip Op 34349[U], 2007 NY Slip Op 32310[U]), which, insofar as appealed from, had granted the motion of defendant Breitbart for summary judgment, denied the motions of defendants Handwerker, Honschke, Marchelos and the partnership Handwerker, Honschke and Marchelos for summary judgment, and denied the cross motion of plaintiff for summary judgment. The following question was certified by the Appellate Division: "Was the order of this Court, which affirmed the order of the Supreme Court, properly made?"
Defendant law firm became plaintiffs attorneys of record in 1994 after a long period of inactivity in her medical malpractice litigation. After the firm dissolved in 1998, defendant Handwerker brought the medical malpractice action with him to his new firm, which evaluated the case and determined that they would not represent plaintiff because an index number had never been purchased in the action. Plaintiff was advised of this decision on January 28, 1999 and she commenced a legal malpractice action on January 31, 2002.
Gotay v Breitbart, 58 AD3d 25, reversed.
Furman Kornfeld Brennan LLP, New York City (A. Michael Furman of counsel), for Michael Handwerker, appellant.
Wilson, Elser, Moskowitz, Edelman Dicker LLP, New York City ( Patrick J. Lawless and Richard E. Lerner of counsel), for Handwerker Honschke and Marchelos and others, appellants.
Gerald J. Mondora, Rye Brook, for respondent.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, with costs, motions for summary judgment by defendants-appellants granted and certified question answered in the negative. Plaintiffs legal malpractice claim was not brought within the applicable statute of limitations period, and defendants-appellants established as a matter of law that the continuous representation doctrine does not apply.
Concur: Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES. Taking no part: Chief Judge LIPPMAN.