FKB wins motion for summary judgment dismissing legal malpractice action against Westchester law firm.3/18/09

Hon. William J. Giacomo (Westchester County Supreme Court) granted FKB's motion for summary judgment against a long-established Mamaroneck law firm, which arose out of failed real estate negotiations in 2000 in connection with the construction and sale of a Scarsdale home. The defendant law firm represented the seller, who decided after protracted negotiations, to back out of the deal. Pursuant to his client's instructions, the defendant-law firm returned copies of the contract of sale and construction agreement/rider to the buyers counsel. Inadvertently, one copy of the construction agreement rider was signed (mistakenly) by the seller, and the defendant-lawyer included this signed rider with the unsigned copies of the contract of sale delivered back to the buyer.

Seizing on this mistake, the buyers filed a specific performance suit against the seller, asserting that the so-called "mistakenly" executed construction agreement was the basis for enforcing the contract of sale, even though it had not been executed by the seller. The underlying breach of contract action against the seller was dismissed after two separate bench trials, but was subsequently reversed by the Appellate Division, and the seller was ordered to convey title to the buyers. The final appeals in connection with that underlying real estate litigation were not resolved until 2007.

Thereafter, the seller sued the defendant-law firm, asserting legal malpractice, and included allegations relating to legal services in 2004 that the defendant-law firm performed in relation to the lease of the subject premises during the pendency of the appeals (a separate law firm handled the real estate litigation).

At the conclusion of discovery, FKB filed a motion for summary judgment pursuant to CPLR §§3212 and 214(6), asserting that the legal malpractice action was barred by the three (3) year statute of limitations and not tolled under the "continuous representation doctrine." In his Decision and Order, Justice Giacomo agreed that the legal services that the defendant-law firm performed in 2004 in relation to a lease on the subject premises was unrelated (so that the continuous representation doctrine did not apply to toll the limitations period), and that the legal malpractice action against the defendant-law firm accrued in 2000 when the original executed construction agreement was mistakenly sent to the buyers' counsel.

FKB's Lynn Dukette prepared the winning motion papers.

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