Saviano v Corniccelo  2015 NY Slip Op 31447(U)  August 3, 2015  Supreme Court, New York County  Docket Number: 153168/2014  Judge: Kelly A. O’Neill Levy discusses how an individual commencing an action might toll the statute of limitations for an LLC which then joins in.

“Plaintiffs allege in their complaint that in or around September 2010, Saviano identified a four-story residential brownstone building located at 218 East 301 h Street, New York, New York (“the Building”), then owned by Dianova USA, Inc. (“Seller”), for purchase. Saviano intended to add a fifth floor to the Building, combining the fourth and fifth floors to create a duplex for himself and his family (“the Planned Duplex”). Saviano retained Defendants in connection with the purchase thereof. Saviano concedes that he did not sign a retainer agreement with Defendants.

In June of 2011 Defendants received a title report for the Building which showed that the air and development rights over the Building had already been sold, effectively preventing any upward construction. Plaintiffs allege that Defendants neither consulted the title report nor informed Saviano of the contents thereof prior to the closing. (Amended Complaint  26). On June 14, 2011, acting on the advice of the Defendants, Saviano assigned all rights and interests in the Contract to the LLC. Defendants told Saviano the assignment was “a nominal and ministerial act” designed to insulate Saviano from liability. (Amended Complaint 37). Saviano signed the Assignmen·t of Contract individually and as a managing member of the newly created LLC. Saviano did not sign a retainer agreement with Defendants on behalf of the LLC. The closing was held on June 21, 2011. In or around May 2012, during a “chance discussion with a neighbor,” Plaintiffs learned that the air and development rights over the Building had been sold, making it impossible to construct the Planned Duplex. (Amended Complaint 40).”

“Under CPLR 3211 (a)(5), a defendant may obtain dismissal of one or more causes of action on the ground that the cause of action is barred by the statute of limitations. In general, a legal malpractice action must be commenced within three years of the date of accrual of the claim. CPLR 214(6); see also Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 194 (2d Dept 2009). Here, Defendants argue that the LLC’s legal malpractice claim is barred by the three-year statute of limitations. According to Defendants, the claim accrued on June 21, 2011, the date of the closing, and the Amended Complaint (filed June 21, 2014), which for the first time asserted claims on behalf of the LLC, is untimely. Taken together with Defendants’ assertion that Saviano has no standing to maintain his individual claims, Defendants argue that there are no valid pre-existing claims to which the LLC’s claims can relate back. Thus, Defendants claim that sustaining the LLC’s claims will “severely prejudic[e]” their defense and preparation of the case. (Defendants’ Reply Memorandum of Law, dated Nov. 11, 2014, p. 7). An otherwise untimely malpractice claim may survive a motion to dismiss ifthe claim relates back to an earlier duly filed complaint where (1) both claims arise out of the same transactions or occurrences, and (2) the new and original plaintiff are so closely related that the original plaintiffs claims would have given the defendant “notice of the transactions, occurrences … to be proved [by] the amended pleadings.” Giambrone v Kings Harbor Multicare Ctr., 104 AD3d 546, 548 (I st Dept 2013). For a defendant to be prejudiced, there must be some indication that the he was “hindered in the preparation of his case or has been prevented from taking some measure in support of his position.” Id. Although the court agrees that Plaintiffs’ malpractice action accrued on June 21, 2011, Defendants’ arguments are unavailing. Here, the LLC’s claims satisfy both elements of the relation-back standard. There can be no dispute that both sets of claims arise from the same transactions and occurrences inasmuch as the LLC’s allegations in the Amended Complaint are essentially identical to Saviano’s original, timely complaint. In this same vein, the LLC and Saviano are so closely related that Saviano’s original claims gave Defendants notice of the transactions or occurrences underlying the LLC’s claims. Notably, Plaintiffs allege that Saviano assigned his rights and interests to the LLC on Defendants’ advice. Moreover, Defendants concede that they informed Plaintiffs that the original complaint failed to name the LLC as a party. (Defendants’ Memorandum of Law, dated Sept. 11, 2014, p. 5). Therefore, it is evident that Defendants were aware of the LLC’s claims as the actual Building owner when Saviano filed his original complaint. “