An Imaginative Pro-Se Legal Malpractice Claim
In Rooney v Manzo 2012 NY Slip Op 32966(U) December 5, 2012 Sup Ct, Queens County
Docket Number: 5865/2012 Judge: Robert J. McDonald we see an inspired attempt to get around the 3 year statue of limitations. It does not succeed.
"In his first cause of action, plaintiff sets forth his claim that defendant breached her agreement ith him by refusing his request to petition the Court for custody of his children; by unilaterally withdrawing from his case; by attempting to coerce him into conceding to his ex-wife’s demands; by failing to conduct adequate and appropriate discovery regarding his ex-wife’s financial circumstances; by failing to provide him with copies of all documents regarding the case; by refusing his request for a second copy of a bill; by failing to make application to enforce his so-ordered visitation; by failing to apply for court intervention regarding his daughter Shannon’s disabilities; by failing to file criminal charges against his ex-wife for custodial interference; by failing to petition the court to amend the child support provisions of a prior order; by failing to provide
receipts to the Quadro matter; by improperly co-mingling funds with the Tryon Company; and by failing to petition the Court for his share of his ex-wife’s IRA account. As a result of the alleged
misfeasance by the defendant, plaintiff contends that he has been damaged in the amount of two million dollars and caused to sustain mental anguish and anxiety.
In his second cause of action, the plaintiff states that he paid defendant the sum of $8,000 as a retainer for rendering legal services and that defendant failed to render said services and failed to provide regular billing statements. As a result the plaintiff seeks a return of the retainer amount.
The third cause of action sounds in legal malpractice and alleges that the defendant failed to represent the plaintiff in a skillful and proper manner in accordance with professional standards by abandoning his case before trial, failing to ascertain the ex-wife’s financial condition and failing to provide documents to the plaintiff so that he could make decisions affecting him and his minor children. Plaintiff seeks the sum of $250,000 under this cause of action.”
In the instant motion, in addition to moving for leave to renew and reargue, plaintiff moves to amend the complaint to add a cause of action for fraud stating that he first learned from
defendant’s prior motion papers that defendant never intended to represent him with respect to his custody and visitation issues but only to assist him in the finalization of his uncontested divorce documents. He states that he expected that Ms. Manzo was retained to be his general divorce counsel and he expected Ms. Manzo to give him guidance in all matters relating to his divorce.
He states that Ms. Manzo gave him her implied promise that she would address the problems relating to his visitation rights and related concerns for his two daughters. He states that he has
sufficient factual allegations to plead a cause of action for fraud in that he was misled into believing that Ms. Manzo would address all aspects of his divorce and not just act to finalize his divorce papers. Thus, plaintiff moves for leave to amend the complaint to plead a cause of action for fraud.
With respect to the court’s decision dismissing the causes of action for malpractice, the plaintiff argues that the cause of action for legal malpractice did not begin to accrue until August 25, 2011 when Justice Raffaele reduced his child support on the ground that his ex-wife had caused parental alienation. A copy of that decision has not been provided to the Court. He states that
this finding confirmed his theory that Ms. Manzo was negligent in not proceeding against his ex-wife at that time for change of custody or modification of visitation. He states that in Florida a
cause of action for malpractice does not accrue until a final determination of the action which he contends is August 25, 2011.
Here, this court finds that the moving papers fail to establish that the court overlooked, isapprehended either the facts or law or otherwise mistakenly arrived at its prior determination. Asstated previously, all of the plaintiff’s causes of action in including the proposed cause of action for fraud all sound in legal malpractice. As the defendant’s representation of the plaintiff ended on December 21, 2006, the complaint, which was served subsequent to the expiration of the three year statute of limitations for legal malpractice claims was time-barred.
Accordingly, for all of the above stated reasons, it is hereby, ORDERED, that the plaintiff’s motion pursuant to CPLR 2221 for leave to renew and reargue the defendant’s motion to dismiss
the complaint is granted, and upon reargument the decision of this court dated June 12, 2012 is adhered to in its entirety, and it is further,ORDERED, that the branch of the plaintiff’s motion for leave to amend the complaint to add a cause of action for fraud and to restore the action to the calendar of the court is denied."