The following papers numbered 1 - 1 read on this motion:Papers Numbered:

Notice of Motion/(Affirmations) (Affidavits) (Exhibits)_______1

_____________________________________________________________ ___________

In the instant action, defendant is WILLIAM PAGER (PAGER), a member of the New York Bar, and plaintiff is CAROL WHYLIE (WHYLIE), a former client of defendant PAGER. Plaintiff WHYLIE is suing defendant PAGER for alleged legal malpractice in a prior underlying action, Carol Whylie v Con Edison, Inc., et. al., Kings County Supreme Court, Civil Term, Index No. 6315/03, in which PAGER represented WHYLIE, until early November 2008. Defendant PAGER moves for dismissal of plaintiff WHYLIE's complaint, pursuant to CPLR Rule 3211, based upon plaintiff's: violation of the applicable three year statute of limitations; failure to state a cause of action; and, improper service upon defendant. Defendant PAGER is correct. Therefore, as will be explained, plaintiff's complaint is dismissed. [*2]

The Court notes that the instant motion was on six times for oral argument, with adjournments granted to allow plaintiff WHYLIE an opportunity to file opposition papers. The Court, on September 24, 2012, adjourned the instant motion to December 17, 2012 for final oral argument. Plaintiff WHYLIE appeared, but failed to present any opposition papers either before December 17, 2012 or on December 17, 2012. The Court reserved decision on December 17, 2012. Last week, on April 9, 2013, plaintiff WHYLIE hand delivered opposition papers to the Part 27 Clerk, for delivery to me. The Court did not consider these late papers in rendering this decision and order.

Plaintiff WHYLIE, in the underlying action, sought damages for complaints alleged to stem from a brief exposure to fumes that leaked on May 3, 2001 from x-ray processing materials. On that day, plaintiff WHYLIE was employed as a medical assistant for a company performing physicals for Con Edison at a Con Edison work site. She claimed injury from an unspecified liquid mix that allegedly exploded after leaking from x-ray equipment. However, she continued to work for almost another month and did not seek any medical treatment or evaluation until almost three months later.

Defendants, in the underlying action, moved for summary judgment and dismissal of plaintiff WHYLIE's complaint, claiming absence of medical causation. This was supported by defendants' medical experts. Defendant PAGER opposed the summary judgment motions, but lacked an expert willing to causally relate the May 3, 2001-incident to the injuries and symptoms claimed by plaintiff WHYLIE. Plaintiff WHYLIE's treating physician, Dr. Denise Harrison [exhibit A of motion], opined that "a careful review of the literature found no definitive link between the chemicals she was exposed to and her complaints." Further, Dr. Harrison reported that "Ms. Whylie was also evaluated by a neurologist and it was determined that her symptoms had no neurological etiology and was thought to have a psychotic disorder."

In her decision and order of November 7, 2008 in the underlying action, Justice Yvonne Lewis granted defendants' motions for summary judgment for lack of medical causality and dismissed plaintiff WHYLIE's complaint. Plaintiff WHYLIE, appearing pro se, appealed Justice Lewis' decision and order. The Appellate Division, Second Department unanimously affirmed Justice Lewis, on December 7, 2010, in Whylie v Con Edison, Inc. (79 AD3d 739), holding:

The respondents established their entitlement to judgment as

a matter of law on the issue of whether they caused the plaintiff's

injuries. They demonstrated through the affirmations of two medical

experts, the plaintiff's medical records, and the material safety data

sheet, that the plaintiff's brief exposure to X ray processing material

did not cause her illness and symptoms (see Alvarez v Prospect Hosp.,

68 NY2d 320 [1986]). In opposition, the plaintiff failed to raise a

triable issue of fact. She offered no expert evidence showing that

her medical condition and symptoms were caused by the alleged toxic

chemical exposure (see Parker v Mobil Oil Corp., 7 NY3d 443, 448

[2006]). Accordingly, the Supreme Court correctly awarded the

respondents summary judgment dismissing the complaint insofar [*3]

as asserted against each of them

Plaintiff WHYLIE, after her dismissal of defendant PAGER, brought numerous applications to Supreme Court, Kings County, in the underlying dismissed action. In one of her affidavits, plaintiff WHYLIE acknowledged that defendant PAGER stopped representing her on November 8, 2008 [exhibit F of motion].

Then, on December 30, 2011, more than three years after PAGER ceased to represent WHYLIE, plaintiff WHYLIE commenced the instant legal malpractice action against defendant PAGER, claiming that in the underlying action, defendant PAGER committed legal malpractice and breach of contract. Plaintiff WHYLIE demanded judgment of $1,000,000 for compensatory damages and $1,000,000 for punitive damages.

In determining whether a complaint is sufficient to withstand a

motion pursuant to CPLR 3211 (a) (7), "the sole criterion is whether the

pleading states a cause of action, and if from its four corners factual

allegations are discerned which taken together manifest any cause of

action cognizable at law a motion for dismissal will fail" (Guggenheimer

v Ginsburg, 43 NY2d 268, 275 [1977]). The court must accept the facts

alleged in the complaint to be true and determine only whether the facts

alleged fit within any cognizable legal theory [see Dye v Catholic Med.

Ctr. of Brooklyn & Queens, 273 AD2d 193 [2000]. However, bare

legal conclusions are not entitled to the benefit of the presumption

of truth and are not accorded every favorable inference [see

Doria v Masucci, 230 AD2d 764 [2000]. When the moving party

offers evidentiary material, the court is required to determine

whether the proponent of the pleading has a cause of action, not

whether [he or] she has stated one (see Meyer v Guinta, 262 AD2d

463, 464 [1999]).

(See Euell v Incorporated Village of Hempstead, 57 AD3d 837 [2d Dept 2008]; GuideOne Speciality Ins. Co. v Admiral Ins. Co., 57 AD3d 611 [2d Dept 2008]; Ruffino v New York City Transit Authority, 55 AD3d 817 [2d Dept 2008]; Katz v Katz, 55 AD3d 680 [2d Dept 2008]; Breytman v Olinville Realty, LLC, 54 AD3d 703 [2d Dept 2008]; NCJ Cleaners, LLC v ALM Media, Inc., 48 AD3d 766 [2d Dept 2008])

In analyzing the instant CPLR Rule 3211 motion to dismiss, reviewing defendant PAGER's arguments, accepting "the facts as alleged in the complaint as true," according "plaintiffs the benefit of every possible favorable inference" and determining "whether the facts as alleged fit within any cognizable legal theory," the Court finds that plaintiff WHYLIE fails to [*4]state a cause of action. Plaintiff WHYLIE commenced the instant action by summons with notice. The notice accompanying the summons alleges that defendant PAGER "[a]fter commencing the lawsuit . . . neglected the plaintiff's lawsuit resulting in its dismissal. Defendant committed legal malpractice by failing to use reasonable care in prosecuting the action resulting in its dismissal" and "[d]efendant breached a contract with plaintiff to use that level of skill necessary to prosecute the action." The notice fails to state how defendant PAGER "neglected the plaintiff's lawsuit." Further, the notice fails to allege that the underlying lawsuit had merit, prior to its dismissal.

The Court in DiGiacomo v Levine (76 AD3d 946 [2d Dept 2010]) instructed:

The elements of a cause of action sounding in legal malpractice

are that the defendant attorney breached a duty of care to the client and

that the breach was a proximate cause of actual damages (Tortura v

Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082,

1083 [2d Dept 2005]; DeGregorio v Bender, 4 AD3d 384 [2d Dept

2004]; Aversa v Safian, 303 AD2d 700 [2d Dept 2003])."

(See Rudolph v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Boone v Bender, 74 AD3d 1111, 1112 [2d Dept 2010]; Maiolini v McAdams & Fallon, P.C., 61 AD3d 644, 645 [2d Dept 2009]; Hamoudeh v Mandel, 62 AD3d 948, 949 [2d Dept 2009]). Moreover, the Court, in Breytman v Schechter (101 AD3d 783, 784 [2d Dept 2012]), held:

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 (see

Rudolph v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442

[2007]).

It is clear that plaintiff WHYLIE failed to allege or demonstrate how defendant PAGER failed to exercise "the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" and how this alleged breach of duty "proximately caused the plaintiff to sustain actual and ascertainable damages." (See Olaiya v Golden, 45 AD3d 823, 823-824 [2d Dept 2007]; Mourtil v Korman & Stein, P.C., 33 AD3d 898, 899 [2d Dept 2006]; Avery v Sirlin, 26 AD3d 451 [2d Dept 2006]; Natale v Samel & Assoc. (308 AD2d 568, 569 [2d Dept 2003]). The underlying action was dismissed because defendants established their entitlement to judgment as a matter of law. Defendants' evidence demonstrated the absence of medical causality between the May 3, 2001-incident and the damages claimed. Plaintiff WHYLIE, in the underlying action, had no medical evidence to respond with or counter defendants' arguments. Moreover, plaintiff WHYLIE fails to allege that the underlying action was meritorious or that it would have been successful.

Further, plaintiff WHYLIE'S breach of contract claim is merely duplicative of the legal malpractice claim and also fails. The Court, in Tsafatinos v Lee David Auerbach, P.C. (80 AD3d 749, 750 [2d Dept 2011]), instructed:

The plaintiffs' causes of action sounding in breach of contract and

breach of fiduciary duty are based on the same facts underlying their [*5]

legal malpractice cause of action and do not allege distinct damages.

Accordingly, they are duplicative of the legal malpractice cause of

action (see Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d

191; Town of N. Hempstead v Winston & Strawn, LLP, 28 AD3d 746,

749; Mecca v Shang, 258 AD2d 569) and likewise subject to the

three-year limitations period (see Harris v Kahn, Hoffman,

Nonenmacher & Hochman, LLP, 59 AD3d 390; Melendez v Bernstein,

29 AD3d 872).

(See Vermont Mut. Ins. Co. v McCabe & Mack, LLP, ___AD3d___, 2013 NY Slip Op 02392 [2d Dept April 10, 2013]; Keness v Feldman, Kramer & Monaco, P.C. ___AD3d___, 2013 NY Slip Op 02376 [2d Dept April 10, 2013]).

Further, the instant summons with notice was filed on December 30, 2011, more than three years after November 8, 2008, the final date of defendant PAGER's representation of plaintiff WHYLIE. As noted above, in Tsafatinos v Lee David Auerbach, P.C., plaintiff WHYLIE's breach of contract claim is duplicative of malpractice and therefore subject to the same three-year statute of limitations as the malpractice claim. (CPLR § 214 [6]). The Court in Vilsack v Meyer (96 AD3d 827, 828

[2d Dept 2012], held:

" On a motion to dismiss a complaint . . . on statute of limitations

grounds, the moving defendant must establish, prima facie, that the

time in which to commence the action has expired. The burden then

shifts to the plaintiff to raise an issue of fact as to whether the statute

of limitations is tolled or is otherwise inapplicable'" (Zaborowski v

Local 75, Serv. Empls. Int. Union, AFL-CIO, 91 AD3d 768, 768-769,

quoting Baptiste v Harding-Marin, 88 AD3d 752).

(See Brooks v AXA Advisors, LLC, 104 AD3d 1178 [4d Dept 2013]).

Thus, defendant PAGER makes a prima facie case to dismiss the instant action because it is time-barred by the statute of limitations. The burden now shifts to plaintiffs "to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable." (Vilsack v Meyer, supra). Plaintiff fails to do so.

Therefore, the instant action is time barred, pursuant to CPLR § 214 (6), and is dismissed. With the dismissal of the instant action for violation of the statute of

limitations, the Court does not have to address the other branches of defendant PAGER's motion to dismiss the instant action.

Accordingly, it is

ORDERED, that the motion of defendant WILLIAM PAGER to dismiss the complaint of plaintiff CAROL WHYLIE, pursuant to CPLR Rule 3211, is granted; and it is further

ENTER

________________________________Hon. Arthur M. Schack

J. S. C.