Sapp-Gooding v. Kreindler & Kreindler, LLP

approximately .0626% of their eligible damages. On July 25, 2023, Sapp-Gooding commenced this action against, among others, the Kreindler firm and the defendants James P. Kreindler and Megan Wolfe Benett by filing a summons with notice. Thereafter, the plaintiffs filed a complaint asserting causes of action against the Kreindler firm, Kreindler, Benett, and nonparties Noah Kushlefsky and Andrew Maloney (hereinafter collectively the Kreindler attorneys), including a cause of action to recover damages for legal malpractice. The complaint alleged that had the Kreindler attorneys obtained final judgments in the Ashton I action and filed VSSTF applications on behalf of the plaintiffs before February 19, 2020, the plaintiffs would have received 5.8574% of their eligible damages from the VSSTF.

On June 26, 2024, the plaintiffs moved pursuant to CPLR 306-b to extend the time to serve the summons with notice upon the Kreindler attorneys. On July 29, 2024, the Kreindler attorneys cross-moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated September 11, 2024, the Supreme Court, inter alia, granted the plaintiffs' motion and denied that branch of the Kreindler attorneys' cross-motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice. The Kreindler attorneys appeal.

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Hughes v Vento, 226 AD3d 753, 754; see Leon v Martinez, 84 NY2d 83, 87-88). "Further, where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed" (Chen v Metropolitan Tr. Auth., 239 AD3d 589, 590 [internal quotation marks omitted]).

"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages" (Guliyev v Banilov & Assoc., P.C., 221 AD3d 589, 590-591 [internal quotation marks omitted]; see Lambro Indus., Inc. v Gilbert,

233 AD3d 765, 767). Additionally, "a plaintiff must prove . . . the existence of an attorney-client relationship" (Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d 646, 648; see Siemsen v Mevorach, 160 AD3d 1004, 1005). "Since an attorney-client relationship does not depend on the existence of a formal retainer agreement or upon payment of a fee, a court must look to the words and actions of the parties to ascertain the existence of such a relationship" (Moran v Hurst, 32 AD3d 909, 911 [citations omitted]). "An attorney's conduct or inaction is the proximate cause of a plaintiff's damages if but for the attorney's negligence, the plaintiff would have succeeded on the merits of the underlying action, or would not have sustained actual and ascertainable damages" (Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d at 649 [internal quotation marks omitted]).

Here, the complaint alleged that the Kreindler firm undertook to represent the plaintiffs in the Ashton I and II actions. More specifically, the complaint alleged, among other things, that the Kreindler firm included Sapp-Gooding, "as Personal Representative of the Estate of [the decedent], Deceased and on behalf of all survivors of [the decedent]," in the Ashton I action on August 1, 2003, obtained the entry of a default judgment against the Islamic Republic of Iran in 2015, sought damages for conscious pain and suffering on behalf of the decedent's estate in 2015, and included Sapp- Gooding, individually and on behalf of the decedent's estate, in the Ashton II action in 2017 (see Rann v Lerner, 160 AD2d 922, 923; Cooke v Laidlaw Adams & Peck, 126 AD2d 453, 455; Matter of Tuthill, 256 App Div 539, 545). The complaint also alleged, in essence, that had the Kreindler attorneys obtained final judgments in the Ashton I action and filed VSSTF applications on behalf of the plaintiffs before February 19, 2020, the plaintiffs would have received 5.8574% of their eligible damages from the VSSTF, and that because the Kreindler attorneys obtained final judgments in the Ashton I action and filed VSSTF applications on behalf of the plaintiffs after that deadline, the plaintiffs received only .0626% of their eligible damages from the VSSTF. Affording the pleading a liberal construction, accepting all facts as alleged in the pleading to be true, according the plaintiffs the benefit of every possible favorable inference, and considering the evidentiary material submitted in support of and in opposition to the Kreinder attorneys' cross-motion, the plaintiffs have a cause of action alleging legal malpractice. Accordingly, the Supreme Court properly denied dismissal of the cause of action alleging legal malpractice pursuant to CPLR 3211(a)(7).

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired"

(Bank of N.Y. Mellon v Munet, 241 AD3d 865, 866 [internal quotation marks omitted]; see Board of Mgrs. of Top of the Ridge Condominiums v Uhlfelder, 240 AD3d 471, 472). "If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period" (Bank of N.Y. Mellon v Munet, 241 AD3d at 866 [internal quotation marks omitted]; see Board of Mgrs. of Top of the Ridge Condominiums v Uhlfelder, 240 AD3d at 472).

The statute of limitations for a cause of action to recover damages for legal malpractice is three years (see CPLR 214[6]; DeStaso v Condon Resnick, LLP, 90 AD3d 809, 812), which accrues at the time the malpractice is committed (see Shumsky v Eisenstein, 96 NY2d 164, 166; Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d 788,

789). "'However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney's continuing representation of the client with regard to the particular matter terminates'" (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 789, quoting Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 144 AD3d 956, 957). The doctrine "applies only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim" (Collins Bros. Moving Corp. v Pierleoni, 155 AD3d 601, 603 [internal quotation marks omitted]; see Goodman v Weiss, Zarett, Brofman, Sonnenklar & Levy, P.C., 199 AD3d 659, 661). "[T]here must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged

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act of malpractice" (Dellwood Dev., Ltd. v Coffinas Law Firm, PLLC, 233 AD3d 752, 753 [internal quotation marks omitted]; see Potenza v Giaimo, 165 AD3d 1186, 1187).

Here, the Kreindler attorneys satisfied their initial burden of demonstrating that the alleged legal malpractice accrued, at the latest, on February 19, 2020, the third deadline for VSSTF applications, which was more than three years prior to the commencement of this action (see Tulino v Hiller, P.C., 202 AD3d 1132, 1135; Schrull v Weis, 166 AD3d 829, 832). In opposition, however, the plaintiffs raised questions of fact as to whether there was a mutual understanding of the need for further representation (see Lytell v Lorusso, 74 AD3d 905, 907; cf. Verkowitz v Ursprung, 153 AD3d 1443, 1444; Landow v Snow Becker Krauss, P.C., 111 AD3d 795, 796-797) and whether the Kreindler attorneys engaged in a course of continuous representation intended to rectify or mitigate the alleged malpractice (see Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d [*3]at 790; DeStaso v Condon Resnick, LLP, 90 AD3d at 812-813; Gravel v Cicola, 297 AD2d 620, 621). Therefore, the Supreme Court properly denied dismissal of the cause of action alleging legal malpractice pursuant to CPLR 3211(a)(5).

"Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant an extension of time within which to effect service for good cause shown or in the interest of justice" (Bhatara v Kolaj, 222 AD3d 926, 930 [internal quotation marks omitted]). "The more flexible interest of justice standard accommodates late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant" (id.). Here, the plaintiffs demonstrated that the action was timely commenced, that service was timely attempted, that they had a potentially meritorious cause of action, and that there was no demonstrable prejudice to the Kreindler attorneys as a consequence of the delay in service. Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the plaintiffs' motion pursuant to CPLR 306-b to extend the time to serve the summons with notice upon the Kreindler attorneys in the interest of justice (see Bank of N.Y. v Hernandez, 243 AD3d 854, 856; Bhatara v Kolaj, 222 AD3d at 931).

The Kreindler attorneys' remaining contentions are without merit.

CONNOLLY, J.P., CHRISTOPHER, WAN and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph Clerk of the Court

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