Red Zone LLC, Respondent, v Cadwalader, Wickersham & Taft LLP, Appellant.
Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered June 19, 2014. The Appellate Division affirmed an amended order and judgment (one paper) of the Supreme Court, New York County (Melvin L. Schweitzer, J.), which had awarded plaintiff $17.2 million.
Attorney and Client — Malpractice — Summary — Judgment — Attorney Affidavit
1. Material triable questions of fact existed in plaintiff's legal malpractice action regarding whether defendant failed to exercise the ordinary reason able skill and knowledge commonly possessed by members of the legal profession. While a party may not create a feigned issue of fact to defeat summary judgment, the affidavit of the attorney who represented plaintiff did not flatly contradict his prior deposition testimony. Therefore, the affidavit should have been considered in opposition to plaintiff's motion.
Limitation of Actions — Tolling — Continuous Relationship Doctrine
2. Plaintiff did not meet its burden in its legal malpractice action of demonstrating that defendant's statute of limitations defense failed as a matter of law. Triable questions of fact existed regarding whether the statute of limitations was tolled by the continuous representation doctrine in light of the significant gap of time between the alleged malpractice and the later communications between the parties, the changed nature of the alleged legal representation of plaintiff by defendant, the absence of any clear delineation of the period of such representation and defendant's submission of affidavits disclaiming any mutual understanding of legal representation after defendant drafted the agreement.
Order modified, with costs, by denying plaintiff's motion for summary judgment and reinstating defendant's affirmative defenses of statute of limitations and comparative negligence and, as so modified, affirmed, in a memorandum.Cravath, Swaine & Moore LLP, New York City (David R. Marriott of counsel), for appellant.
Jeffrey A. Jannuzzo, New York City, and Hinman Straub PC, Albany (James T. Potter of counsel), for respondent.
Judges Pigott, Rivera, Abdus-Salaam, Stein and Garcia concur. Chief Judge DiFiore and Judge Fahey took no part.
[*1049] [**398] [***70] Memorandum.
The order of the Appellate Division should be modified, with costs, by denying plaintiff's motion for summary judgment and reinstating defendant's affirmative defenses of the statute of limitations and comparative negligence and, as so modified, affirmed.
[1] Viewing the evidence in the light most favorable to defendant as the non-movant (see generally Vega v Restani Constr. Corp., 18 NY3d 499 , 503 , 965 NE2d 240 , 942 NYS2d 13 [2012]; Ortiz v Varsity Holdings, LLC, 18 NY3d 335 , 339, 960 NE2d 948 , 937 NYS2d 157 [2011]), material triable questions of fact exist regarding whether defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by members of the legal profession (see Dombrowski v Bulson, 19 NY3d 347 , 350, 971 NE2d 338 , 948 NYS2d 208 [2012]). While a party may not create a feigned issue of fact to defeat summary judgment (see S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 , 341, 313 NE2d 776 , 357 NYS2d 478 [1974]), contrary to plaintiff's assertion here, the affidavit of the attorney who represented plaintiff did not flatly contradict his prior deposition testimony. Therefore, the affidavit should have been considered in opposition to plaintiff's motion.
[2] Similarly, plaintiff did not meet its burden of demonstrating that defendant's statute of limitations defense fails as a [*1050] matter of law. Specifically, triable questions of fact exist regarding whether the statute of limitations was tolled by the continuous representation doctrine in light of: the significant gap in time between the alleged malpractice and the later communications between the parties; the changed nature of the alleged legal representation of plaintiff by defendant; the absence of any clear delineation of the period of such representation; and defendant's submission of affidavits disclaiming any mutual understanding of legal representation after 2005 (see generally Grace v Law, 24 NY3d 203 , 212, 997 NYS2d 334 , 21 NE3d 995 [2014]).
Judges Pigott, Rivera, Abdus-Salaam, Stein and Garcia concur; Chief Judge DiFiore and Judge Fahey taking no part.
Order modified, with costs, by denying plaintiff's motion for summary judgment and reinstating defendant's affirmative defenses [**399] [***71] of statute of limitations and comparative negligence and, as so modified, affirmed, in a memorandum.
