Catsiapis v Pardalis & Nohavicka, LLP 2023 NY Slip Op 04185 Decided on August 9, 2023 Appellate Division, Second Department recites the unusual loss of three years of statute of limitations protection for a Judiciary Law 487 claim when it is brought up along with a legal malpractice claim. The New York Court of Appeals found that Judiciary Law 487 claims are the “common law” and subject to a 6-year statute. The Second Department found that when the claims are accompanied by a legal malpractice claim, they shed three years.

“The plaintiff commenced this action to recover damages for legal malpractice and violation of Judiciary Law § 487. The defendants moved for summary judgment dismissing the complaint. The Supreme Court, upon determining that the action was barred by the three-year statute of limitations applicable to a cause of action to recover damages for legal malpractice, granted the defendants’ motion. The plaintiff appeals. We affirm.

An action to recover damages for legal malpractice must be commenced within three years of the accrual of the cause of action regardless of whether the underlying theory is based in contract or tort (see CPLR 214[6]). An action to recover damages for attorney deceit under Judiciary Law § 487 is subject to the six-year statute of limitations set forth in CPLR 213(1) (see Melcher v Greenberg Traurig, LLP, 23 NY3d 10, 15). A legal malpractice action that also alleges a cause of action to recover damages for attorney deceit under Judiciary Law § 487 must be dismissed as time-barred if not commenced within three years of the accrual of the cause of action, if the Judiciary Law § 487 cause of action is premised on the same facts as the legal malpractice cause of action and does not allege distinct damages (see Benjamin v Allstate Ins. Co., 127 AD3d 1120, 1121; Farage v Ehrenberg, 124 AD3d 159, 169).

Here, the defendants demonstrated, prima facie, that the instant action was commenced after the expiration of the three-year statute of limitations applicable to the plaintiff’s legal malpractice cause of action (see CPLR 214[6]). Moreover, since the plaintiff’s causes of action alleging violations of Judiciary Law § 487 are premised on the same facts as the legal malpractice cause of action and do not allege distinct damages, they too are barred by the three-year statute of limitations (see Benjamin v Allstate Ins. Co., 127 AD3d at 1121; Farage v Ehrenberg, 124 AD3d at 169; see also Jemima O. v Schwartzapfel, P.C., 178 AD3d 474, 475).”