Just Two Weeks Too Late

Plaintiff sues attorneys for a divorce situation in which he alleges they represented both him and his wife, and lost about $1 million for him in the proceedings. His complaint, in Verdelis v Landsman ; 2011 NY Slip Op 32196(U);  Sup Ct, NY County; Docket Number: 651767/10; Judge: Judith J. Gische survives both a CPLR 3211(a)(1) and (a)(7) motion, yet is dismissed on the basis that it was brought 3 years + two weeks after the judgment of divorce was entered. The Court finds that the cause of action accrued on the date of entry of the judgment of divorce.

"Plaintiff claims that Defendants were retained to represent him in an uncontested divorce proceeding, Daphne Sirneon v. Konstanhos Verdelis, 30981 1/07, (the “Underlying Action”) involving his ex-wife, Daphne Simeon (“Sirneon”). Defendants deny the allegations and bring this pre-answer motion to dismiss the complaint based upon: (I) a defense founded on documentary evidence (CPLR 3 321 1 [a][l]), (2) the expiration of the statute of limitations (CPLR § 321 1 [a][5]),
and (3) failure to state a cause of action (CPLR 5 3211 [a][7]). Plaintiff opposes the
motion."

"Plaintiff alleges that in 2007, the defendants failed to inform him that they were not representing him. Specifically, Plaintiff claims that the Defendants improperly rendered legal advice to him and they did not advise him that there were adverse interests between him and his wife. Plaintiff claims that Simeon told him that the defendant’s fees were $5,476 and that he was to pay 1/2 of the fees by paying Simeon $2,738. Plaintiff further alleges that the Defendants protected Simeon to his disadvantage, and that they failed to advise him that he was entitled to equitable distribution of the marital assets that totaled approximately $2,000,000. Plaintiff also claims that they did not advise
him to seek outside counsel before he waived his right to approximately $1,000,000 in
distributable assets"

"Although the attorney-client relationship is contractual in nature, formality is not an essential element to its formation. Talanskv v. Schulman, 2 A.D.3d 355, 358 (1st Dept. 2003). An attorney-client relationship may exist where an attorney was involved in the drafting, preparation and execution of a separation agreement, even though the attorney did not negotiate its terms or provide advice to the plaintiff. Shanlev v Welch, 31 A.D.3d 1127 (2006); see also Leon v Martinez, 84 NY2d 83 (1 994) (plaintiffs pleaded enough to infer existence of attorney-client relationship where defendant attorneys had drafted agreement between their client and plaintiffs in which client agreed to pay portion of lawsuit proceeds to plaintiffs ). Allowing the complaint a liberal construction and taking into account the Plaintiffs submissions, Plaintiff has sufficiently pleaded a cause of action for legal malpractice."

"Defendant’s documentary evidence relied upon by defendants does not conclusively, taken in a light most favorable to the Plaintiff, eliminate the possibility that an attorney-client relationship existed between Plaintiff and Defendants. Therefore, the Motion to Dismiss pursuant to CPLR 5 321 l(a)(i) is denied."

"A cause of action for legal malpractice based upon a divorce proceeding accrues on the date the
Judgment of Divorce was actually entered. Zorn v. Gilbert, 8 N.Y.3d 933 (2007). See, McCoy, supra, at 205 (Holding that the plaintiff had a cause of action on the day the divorce judgment was filed with the County Clerk’s office and as a result, plaintiffs claim was time barred as she brought it more than three years later). Consequently, Plaintiffs argument that his claim accrued when he was mailed the Judgment of Divorce is rejected. Based on the foregoing, Plaintiff was required to commence his action for legal malpractice against the Defendants by October 5, 201 0. Since the instant action was not commenced until October 18, 201 0, by the filing of a Summons with Notice, it is untimely under the applicable statute of limitations period. Plaintiffs First Cause of Action, for Legal Malpractice must therefore be dismissed as time-barred pursuant to CPLR 3321 I (a)(5).

 

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