Gordon v Martel 2023 NY Slip Op 33666(U) October 17, 2023 Supreme Court, New York County Docket Number: Index No. 150241-2023 Judge: Lynn R. Kotler demonstrates that real estate in New York City is a driving force for attorney employment, litigation cases and, eventually, legal malpractice. In this particular case, the attorney died and extraneous issues of proofs and statutes of limitation are examined.
“This is an action for legal malpractice and negligence which arises from non-party Ronald Hollander’s (“Hollander”) representation of plaintiff Martina Gordon (“Gordon”). The representation concerned a property located at 476 Broadway a/k/a 38 Crosby Street, New York, New York, Apartment 1 OR (the “unit”). Hollander represented Gordon in an action against the Cooperative of the building that the unit was a part of. Hollander passed away in July 2022, and so Gordon brings this action against Maureen Martel (“Martel”) as the administrator of Hollander’s estate. Gordon claims she has been barred from recovering damages in her case against the Cooperative due to the negligence or recklessness of Hollander and his failure to prosecute the litigation in “a proper skillful and diligent manner.” In this action, Gordon is seeking damages in an amount to be determined at trial plus costs, disbursements, and statutory prejudgment interest. Defendant now moves for an order dismissing the action in its entirety with prejudice pursuant to CPLR § 3211(a)(1), (5), and (7) and CPLR § 4519. Plaintiff opposes the motion.”
“First, Martel argues that the complaint is untimely and violates the applicable statute of limitations. Martel states that the statute of limitations allows a claim to be brought within three years after the ripening of the claim, not three years after the representation ended. Martel argues that the alleged misrepresentation around the mischaracterization of her negligence claim and the failure to appeal ripened
in July of 2018, when Judge James’ decision and order was issued. She claims that the alleged misrepresentation around the dismissal of the claims against Vidaris ripened in 2017 when the dismissal took place. Therefore, the statute of limitations has run on both of these alleged misrepresentations.
Martel further argues that even if the continuous representation doctrine is applicable, this action was untimely. She points to a January 2, 2020 correspondence between Hollander and Gordon’s husband which she claims evidences a clear breakdown of the attorney-client relationship. Martel asserts that this. correspondence demonstrates that the attorney/client relationship terminated on that day, thereby cutting off the continuous representation doctrine. Therefore, plaintiff had until January 2, 2023
to bring this action. The action was brought on January 9, 2023.
Gordon responds that her claim is timely because the continuous representation doctrine as well as the toll afforded under CPLR § 210(b) are applicable to this case. Therefore, Gordon had ample to file a malpractice claim. Gordon submits the WebCivil appearance detail of the underlying action to support her argument.
An action for legal malpractice must be commenced within three years of the date of accrual (CPLR 214), The claim accrues when the malpractice is committed, not when the client discovers it (Williamson ex rel. Lipper Convertibles, L.P. v. PricewaterhouseCoopers LLP, 9 NY3d 1 [20071).”
“As for plaintiff’s claim arising from the failure to appeal the 2018 Order, the court finds that the continuous representation doctrine does save this claim as it is related to the ongoing issues in which Hollander continued to represent the Gordons on until January 2020. Further, while this action was commenced several days beyond three years from when Hollander no longer represented the Gordons, Hollanders passing in 2022 further tolled the statute of limitations eighteen months automatically (CPLR 21 0[b]; see i.e. McDonough v. Cestare, 3 AD2d 201 [2d Dept 1957]). Therefore, the motion to dismiss
plaintiff’s malpractice claim stemming from the 2018 Order as untimely is denied.”
“Finally, Martel argues that the dead man’s statute prevents plaintiff from testifying as to any advice given by Hollander and that the inability to provide such testimony renders any claim unprovable. She states that plaintiff and her husband would necessarily be required to testify as to communications between Hollander and themselves with respect to the legal advice that they had been given in the underlying action to establish a case for malpractice. The CPLR § 4519 does not bar Gordon from bringing this action. Indeed, Gordon states that she will establish her claim through documentary evidence and expert witnesses testimony. Accordingly, this argument is also unavailing.”