Plaintiff brings a legal malpractice action based upon a series of real estate closings. His 2011 complaint strikingly fails to say when the attorney last represented him. Result? In Elmakies v Sunshine 2014 NY Slip Op 00478 Decided on January 29, 2014 Appellate Division, Second Department the case is dismissed on the statute of limitations.
"The instant action to recover damages for legal malpractice and breach of fiduciary duty was commenced in December 2011. The complaint does not allege when the conduct giving rise to these causes of action occurred.
The defendant Jeffrey Sunshine and his law firm, Jeffrey Sunshine, P.C. (hereinafter together the Sunshine defendants), moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred. In support of the motion, Sunshine submitted an affidavit stating that his firm "was retained to represent the plaintiff Downstate Elmira Acquisiton Corp. in a series of real estate closings for the purchase of properties in Elmira, New York," and "[t]to the best of my recollection, the last closing took place on October 5, 2007." In support of that claim, Sunshine submitted a copy of a closing statement dated October 5, 2007.
In opposition, the plaintiff Nissim Elmakies submitted an affidavit stating that Sunshine acted as his business attorney, and was in "continuous communication regarding my investment." However, the last communication with Sunshine alleged by the plaintiffs was a facsimile transmission dated December 7, 2007.
The Sunshine defendants made a prima facie showing that the three-year statute of limitations for legal malpractice (see CPLR 214) expired before the action was commenced, and the plaintiffs failed to raise a question of fact in opposition (see Hadda v Lissner & Lissner LLP, 99 AD3d 476, 477). Further, since the plaintiffs seek monetary relief for the alleged breach of fiduciary duty, the statute of limitations for that cause of action is also three years (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139). That cause of action was based on the same facts underlying the legal malpractice cause of action and, therefore, was time-barred (see Vermont Mut. Ins. Co. v McCabe & Mack LLP, 105 AD3d 837, 839; Tsafatinos v Lee David Auerbach, P.C. , 80 AD3d 749, 750). "