Successive Summary Judgment Motions Not Permitted; Cause of Action Dismissed Anyway

This case appears to be a fee dispute with a healthy counterclaim.  We glean that defendants waited until (and perhaps only because) they were sued for legal fees.  They responded with a legal malpractice counterclaim.  In Debevoise & Plimpton LLP v Candlewood Timber Group LLC
2013 NY Slip Op 00408   Decided on January 29, 2013   Appellate Division, First Department defendants are permitted a legal malpractice counterclaim only as a monetary offset to plaintiff's claims.  They are precluded from a positive award above the claims of plaintiff because of the statute of limitations.


Plaintiffs were permitted only one motion for summary judgment, which they had used for a statute of limitations argument. 

"The court properly found that defendants' legal malpractice counterclaim was time-barred to the extent defendants seek monetary damages (see CPLR 214[6]). The most recent allegation of negligence occurred in May 2006 — more than three years before this action was commenced in November 2009 — and defendants failed to show that the continuous representation doctrine applies. "There were no clear indicia of an ongoing, continuous, developing and dependent relationship between the client and the attorney" (Matter of Merker, 18 AD3d 332, 332-333 [1st Dept 2005] [internal quotation marks omitted]), nor was there "a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim" (McCoy v Feinman, 99 NY2d 295, 306 [2002]). Defendants did not submit affidavits showing "that facts essential to justify opposition may exist but cannot then be stated" (CPLR 3212[f]). As both sides agree, defendants' malpractice counterclaim is not time-barred insofar as defendants seek to set off their malpractice damages against any recovery plaintiff might obtain (see CPLR 203[d]).

Plaintiff is correct that its second summary judgment motion was not duplicative of its first: Its first motion dealt only with the statute of limitations, whereas its second dealt with the merits of defendants' malpractice counterclaim. However, "[a]s a general rule, parties will not be permitted to make successive fragmentary attacks upon a cause of action but must assert all available grounds when moving for summary judgment" (NYP Holdings, Inc. v McClier Corp., 83 AD3d 426, 427 [1st Dept 2011] [internal quotation marks and brackets omitted]). Plaintiff has not demonstrated that any of the exceptions to this rule apply (see e.g. Jones v 636 Holding Corp., 73 AD3d 409 [1st Dept 2010]; Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39 [1st Dept 2002]). "

 

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