Oliveto Holdings, Inc. v Denis W. Light, PLLC 2016 NY Slip Op 02063 Decided on March 23, 2016 Appellate Division, Second Department decided yesterday is a case much more complicated than the Second Department decision suggests, In the Supreme Court decision and order the court recognizes that there was a foreclosure action started and lost at trial, then reversed on appeal. The reversal on appeal set up the legal malpractice case.
There are two lines of argument on when a legal malpractice action commences. One is the traditional “date of the mistake” commencement and one recognizes that as of the date of the mistake not all the elements of legal malpractice yet exist, as in Ackerman v. Price Waterhouse. There, the standard is when all of the elements exist so as to make out a prima facie case of legal malpractice and “an injured party can obtain relief in court.” In Ackerman, an IRS assessment came more than three years after the mistake in filing.
Here, the Court simply says that more than three years has passed. It wrote: “The defendants demonstrated, prima facie, that the plaintiff’s legal malpractice cause of action accrued more than three years prior to the time this action was commenced. In opposition, the plaintiff failed to raise a question of fact (see CPLR 214[6]; Benjamin v Allstate Ins. Co., 127 AD3d 1120; Landow v Snow Becker Krauss, P.C., 111 AD3d 795; Elstein v Phillips Lytle, LLP, 108 AD3d 1073;DeStaso v Condon Resnick, LLP, 90 AD3d 809; McCormick v Favreau, 82 AD3d 1537). Accordingly, the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that it was barred by the applicable statute of limitations.”