This matter comes before the Court on plaintiff's motion for summary judgment in this action for legal malpractice based on defendant's failure to commence a foreclosure action on behalf of the Estate of Arthur F. Martin. Defendant filed a cross motion seeking to dismiss the complaint for failure to commence this action within the Statute of Limitations. Defendant also sought to amend his answer to include affirmative defenses. At oral argument, the Court denied defendant's application to amend his answer and reserved on plaintiff's motion for summary judgment and defendant's cross motion to dismiss the action as time barred.

A defendant who seeks to dismiss a complaint on the grounds that the action is barred by the Statute of Limitations must make a prima facie showing that the time in which to commence the action has expired (Gravel v. Cicola, 297 AD2d 620 [2nd Dept. 2002]). Here, the defendant met his burden by offering evidentiary proof that the cause of action for malpractice accrued on or before August 31, 1997, when the trial court dismissed the foreclosure action as untimely, and that the malpractice action was not commenced until June 10, 2002, after the three-year limitations period had expired (see CPRL 214[6]). The burden then shifted to plaintiff to present evidence establishing an exception to the Statute of Limitations (Gravel v. Cicola, supra at p. 621).

Plaintiff argues that the three year period within which to bring a legal malpractice action was extended in this case based on the doctrine of continuous representation (Pellati v. Lite & Lite, 290 AD2d 544, 545 [2nd Dept. 2002]). This doctrine recognizes that a client cannot realistically be expected to sue his attorney for malpractice during the attorney's ongoing representation of the client on a specific legal matter (Shumsky v. Eisenstein, 96 NY2d 164, 167-168 [2001]). Under this doctrine, the Statute of Limitations is tolled when the continuous representation pertains specifically to the matter in which the attorney committed the alleged [*2]malpractice (Shumsky v. Eisenstein, supra at p.168; Griffin v. Brewington, 300 AD2d 283, 284 [2nd Dept, 2002]; Luk Lamellen U. Kupplungbau GmbH v. Lerner, 166 AD2d 505, 506 [2nd Dept. 1990]). Additionally, there must be a clear indication that the relationship between the client and the attorney is a continuing, developing, and dependent relationship (Corless v. Mazza, 295 AD2d 848 [3rd Dept. 2002]; Piliero v. Adler & Stavros, 282 AD2d 511, 512 [2nd Dept. 2001]).

Plaintiff claims that defendant's representation of the Estate did not end with the dismissal of the action by the Supreme Court but continued through September 9, 1999, when defendant appeared and argued the appeal from the trial court's dismissal of the foreclosure action before the Appellate Division. Defendant does not dispute that he represented the estate in the appeal process, but contends that the continuous representation doctrine does not apply because defendant's prosecution of the appeal was distinct and separate from the foreclosure action. Defendant contends that, even if the continuous representation doctrine does apply, defendant's representation ceased on January 14, 1999, when defendant received a letter from plaintiff advising defendant that plaintiff was in the process of retaining new counsel and requesting that his files involving the foreclosure be turned over to new counsel. Therefore, defendant claims that, as the malpractice action was commenced after January 14, 2002, it is untimely.

Because the parties do not dispute the underlying facts of the case, the claim of continuous representation is one of law for the Court to decide. In this case, the continuous representation doctrine applies. Defendant has submitted no legal authority to support his claim that the foreclosure action and the appeal are separate legal proceedings. This Court finds that even if a separate legal proceeding, the appeal was part of the ongoing representation to collect the amount due under the mortgage (accord Corless v Mazza, 295 AD2d 848, 849). Defendant admitted that he represented the estate in the appeal from the trial court's dismissal of the foreclosure action. Plaintiff submitted court documents verifying that defendant filed, prosecuted the appeal and appeared before the Appellate Division to orally argue the estate's case on September 9, 1999. Defendant has not disputed the accuracy of these documents.

Defendant claims that, even though he did prosecute the appeal, plaintiff severed the attorney client relationship in January of 1999, when he requested the turnover of his files. Defendant claims that plaintiff's letter evidenced that there was no longer any relationship of trust and confidence between them. Defendant argues that, without the client's trust and confidence, there was no attorney-client relationship upon which the doctrine of continuous representation could apply.

It is undisputed that the defendant continued to perform legal services for the Estate by proceeding with the appeal after receiving this letter. Here there is no question that the services rendered were an attempt to rectify the alleged malpractice and not legal services performed for the Estate in some other capacity (Gravel v Cicola, 297 AD2d 620). Although there is some dispute over whether defendant ever provided copies of the file to the new attorney as plaintiff requested, there is no proof that defendant withdrew as attorney in the appeal or that he notified plaintiff he would discontinue his work on the appeal (Shumsky v Eisenstein, 96 NY2d 164, 170-171; Aaron v Roemer, Wallens & Mineaux, 272 AD2d 752, 755 [3rd Dept. 200]). It is defendant's continued and active representation of the estate on the foreclosure issue which distinguishes this case from those cited by defendant. In the cases cited by defendant, all work by the attorney ceased shortly after the attorney had been discharged or resigned. In this case, [*3]defendant's continued representation of the estate for more than six (6) months after receiving the letter from plaintiff, undermines defendant's claim that there was no longer a continuing relationship between the parties. Therefore, the continuous representation doctrine does apply to the facts of this case in spite of the January 14, 1999, letter requesting a copy of the files. As this action was brought within three (3) years after defendant last appeared on behalf of the Estate, this action is timely. Defendant's application to dismiss the complaint as time barred is denied.

Plaintiff has moved for summary judgment alleging that there is no question of fact regarding defendant's malpractice in failing to commence the foreclosure action within the applicable Statute of Limitations. A party seeking summary judgment must set forth sufficient evidence to demonstrate the absence of any material issue of fact (Alvarez v. Prospect Hospital, 68 NY2d 320, 324). If the proponent fails to make this showing, the motion for summary judgment must be denied regardless of the adequacy of the opposing papers (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). However, once this showing has been made, the burden then shifts to the opponent of the motion to come forward with evidence in admissible form to establish the existence of material issues of fact which require a trial (Gonzalez v. 98 Mag Leasing Corporation, 95 NY2d 124, 129; Alvarez v. Prospect Hospital, 68 NY2d 320, 324). In reviewing a motion for summary judgment, the evidence must be considered in the light most favorable to the opponent (Ruzycki v. Baker, 301 AD2d 48, 50 [4th Dept. 2002]).

To recover damages for legal malpractice, a plaintiff must prove 1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, 2) that this failure was the proximate cause of plaintiff's injury, 3) that plaintiff was damaged thereby, and 4) that plaintiff would have been successful in the underlying action had the attorney exercised due care (Ippolito v. McCormack, Damiani, Lowe & Mellon, 265 AD2d 303 [2nd Dept. 1999]).

Plaintiff's proof in support of his motion consisted of a copy of the mortgage document, the pleadings in the underlying foreclosure action, proof that defendant represented the Estate in the collection process, the trial court's decision dismissing defendant's foreclosure action as untimely, and the Appellate Division's Order affirming the trial court's decision. Thus plaintiff has made out a prima facie case for summary judgment. Defendant did not present any facts disputing the proof submitted by plaintiff. Therefore, plaintiff's motion for summary judgment on the issue of defendant's liability for malpractice is granted.

Plaintiff has also moved for summary judgment on the issue of damages arising from the malpractice claim. Plaintiff claims that because the malpractice claims arises out of the foreclosure action, his damages can be determined as a matter of law. In a legal malpractice action where the injury suffered is the loss of a cause of action, the measure of damages is generally the value of the claim lost (Campagnola v. Mulholland, Minion & Roe, 76 NY2d 38 [1990]; Lindeman v. Kreitzer, ___AD2D___, 775 NYS2d 4 [1st Dept. 2004]). Plaintiff claims that the mortgagor defaulted on February 28, 1989, and that the unpaid mortgage as of that date was $31,707.03. Plaintiff claims that he is entitled to the unpaid mortgage amount as well as [*4]interest from that date at 9 percent, based on the mortgage documents and the CPLR.

Defendant does not dispute the calculations used by plaintiff. However, defendant claims that plaintiff will be unjustly enriched if awarded damages in the amount of the unpaid mortgage because plaintiff may still be able to satisfy the mortgage when the property is eventually sold. Plaintiff argues that this mortgage cannot be enforced and therefore, has no value.

When the time limit within which to commence an action to foreclose a mortgage has expired, an action may be brought to discharge the mortgage as an unenforceable encumbrance on the property (RPAPL Section 1501[4]). Although no such action has yet been brought, defendant has not set forth any facts to raise a question of fact that such an action would be unsuccessful. Therefore, no hearing is necessary to determine plaintiff's damages.

Plaintiff is awarded a judgment of $31,707.03 with interest of 9 percent calculated from February 28, 1989.

Plaintiff's attorney to submit judgment.

Dated:

ENTER:______________________________

Hon. Marianne Furfure

Acting Supreme Court Justice