Naivete is the assigned cause of the sale of a building without full payment, but legal malpractice is the claimed reason. Problem? Plaintiff started the action 4 years after the sale. Hudson 418 Riv. Rd., LLC v Safiya Consultants Inc. 2019 NY Slip Op 31506(U) May 24, 2019 Supreme Court, Kings County Docket Number: 510351/18 Judge: Leon Ruchelsman is a short story of heartbreak.
“As recorded in prior orders, property located at 986 Gates Avenue in Kings County was owned by Kobas and Solih Realty LLC. On March 13, 2014 the owner entered into a contract to sell half the ownership interest to defendant Brooklyn Broadway Masjid and Islamic Center [hereinafter ‘the
Masjid’]. It is alleged the Masjid did not pay the agreed upon price and that due to the naivete of Mr. Amin Kobas, the principal of the owner, the sale was effectuated in any event. Further, it is alleged the Masjid assumed management of the entire building.
Conclusions of Law
The basis for any claims against defendant Kwasnik are based on the fact that as counsel to Kobas failed to stop the closing from taking place, essentially committing legal malpractice. Indeed, the sixth count of the complaint is a claim for professional malpractice against Kwasnik. It is
well settled that a legal malpractice claim must be filed within three years of the alleged malpractice (CPLR §214(6)). Thus, since there is no dispute the closing took place in 2014 and the lawsuit was not commenced until 2018 the claim against Kwasnik cannof be maintained. The plaintiff argues that any defense regarding the statute of limitations has been waived. However, for a defendant to waive the statute of limitations they must fail to raise it in the answer or by appropriate motion (Matter of Augenblick, 66 NY2d 775, 497 NYS2d 363 ). It s true the defendant has waited a few months until this motion has been filed, however, this is the first responsive molion they have filed and other motions, unrelated to Kwasnik, have contributed to a hearing on this issue. Moreover, any fraud claim that has been alleged as to Kwasnik is really a malpractice claim and is thus duplicative of the malpractice claim. Therefore, since the lawsuit has been filed more than three years after the events giving rise to the claim the motion of Kwasnik seeking to dismiss the complaint as to him is granted”