The instant action involves a legal malpractice claim by plaintiff Kenneth Nahoum (Nahoum) against Carolyn L. Weiss and her law firm Weiss & Weiss (collectively, Defendants). The complaint alleges that Defendants committed legal malpractice, by failing to exercise reasonable care and diligence in representing Nahoum in connection with his purchase and subsequent improvement of certain real property located in New York City. Defendants move to dismiss, pursuant to CPLR 3211 (a) (1), (5), and (7), on the basis that the complaint fails to state a cause of action, and that the legal malpractice claim is time-barred.

For the reasons stated herein, the motion to dismiss is denied.

In the complaint, plaintiff alleges that he retained Defendants in December 2000 in connection with his "acquisition and improvement of additional space in a condominium apartment building at 95 Greene Street, New York, New York [the Condo]." The record reflects that plaintiff owns two penthouse units in the Condo, designated as PH-A and PH-E. The "additional space" plaintiff purchased consists of certain "mechanical space" and "residential limited common element space" on the Condo's roof-top, located adjacent to PH-A and PH-E (the Subject Property). The seller of the Subject Property is the Board of Managers of Greene House Condominium (the Board).

By Contract of Sale, dated October 22, 2002 (the Contract), the Board agreed to sell, and plaintiff agreed to buy, "1,072 square feet of the common area and 1,071 square feet of mechanical space," at the price of $69,780. The Contract specifies that the sale was subject to, among other things, the [*2]New York State Condominium Act and the Greene House Condominium Declaration of Condominium (the Declaration). In the Contract, the Board, as seller, represented that, pursuant to the Condo's Declaration, "it has obtained the approval of at least 66-2/3% in number and in Common Interest of all unit owners to amend the Declaration," for the sale of the Subject Property and the reconfiguration of the Condo's common interests. However, in the First Amendment to the Declaration of Greene House Condominium, also dated October 22, 2002 (the Amended Declaration), it was stated that the Amended Declaration was "the result of the sale of 1,072 square feet of mechanical space and 816 square feet of residential limited common element space to the existing Penthouse Unit A and E Owner," and that the sale "has been approved by the unanimous vote of the Unit Owners." The Contract of sale and the Amended Declaration were signed by Lois Ketsen, in her capacity as the then-president of the Board.

The record reflects that subsequent to the closing of the sale transaction on October 22, 2002, plaintiff began making renovations and improvements to the Subject Property. The record also reflects that, in a notice given by the Condo's new Board of Directors, dated November 21, 2005 (the 2005 Board Notice), the Board informed the unit owners of the Condo that "the sale of common area to Mr. Nahoum was never approved as required by law [and] the amount of space actually transferred to Mr. Nahoum was far greater than the amount Unit Owners had previously been informed about." The 2005 Board Notice also stated that Nahoum's ongoing renovation project was "improper and illegal" because "the required unanimous consent to the Nahoum purchase of common area was never obtained from Units Owners ... and Nahoum in fact has no legal right to build his project on the roof." A copy of the 2005 Board Notice is annexed as Exhibit E to plaintiff's opposition to Defendants' motion to dismiss.

In addition, the record reflects that in 2003, a unit owner of the Condo named Angela Feeser commenced a lawsuit (index number 120240/03) in connection with her purported roof space lease with the Condo (the Feeser Action). In the Feeser Action, which is pending before Justice Walter Tolub of the court, Feeser sued the Condo, the Board, and Nahoum, individually and as the then-president of the Board. In its answer filed in the Feeser Action dated August 30, 2006 (the Board Answer), the Board asserted a cross-claim against co-defendant Nahoum, and sought a judgment declaring that the sale of the Subject Property to Nahoum, pursuant to the Contract of Sale dated October 22, 2002, was null and void. A copy of the Board Answer is annexed as Exhibit D plaintiff's opposition to the motion to dismiss.

After the Board's assertion of a cross-claim against Nahoum, by way of the Board Answer filed in the Feeser Action, Nahoum commenced this legal malpractice action against Defendants on [*3]October 6, 2006, which was almost four years after the closing of the Subject Property on October 22, 2002. In the motion seeking dismissal of the complaint pursuant to CPLR 3211, Defendants argue, among other things, that the instant action is timed-barred by the three-year statue of limitations applicable to legal malpractice claims, and that the complaint fails to state a cause of action.

To properly plead a legal malpractice claim, a plaintiff must allege: (1) the attorney's negligence; (2) that the negligence was the proximate cause of plaintiff's loss; and (3) actual damages sustained by plaintiff. Leder v Spiegel, 31 AD3d 266 (1st Dept 2006); Pellegrino v File, 291 AD2d 60 (1st Dept 2002).

In the instant case, plaintiff claims that Defendants were negligent because they allegedly failed to exercise care and diligence in representing him in connection with his purchase and improvement of the Subject Property. Specifically, plaintiff alleges that "Defendants knew or should have known that plaintiff's purchase was defective because the seller was not authorized to transfer lawful title to the space purportedly being sold." Complaint, ¶ 9. In support of the allegation, plaintiff points to Real Property Law (RPL) § 339-i, which provides that the alteration of common interests of a condominium requires "the consent of all unit owners." Plaintiff argues that, because his purchase of the Subject Property would cause an alteration of the Condo's common interests, the Defendants, as his counsel, were obligated to investigate whether all unit owners of the Condo had consented, as required by RPL § 339-i, when the Contract of Sale stated that the Board, as seller, obtained the consent of only 66-2/3% of the unit owners.

Plaintiff's argument is unsupported since the Amended Declaration stated that the sale "has been approved by the unanimous vote of the Unit Owners."^[FN1] Additionally, in a letter by the [*4]Board's then counsel dated September 13, 2002, it was stated that the "First Amendment [i.e. Amended Declaration] now states that the unanimous consent of the Unit Owners has been obtained." Copies of the Amended Declaration as well as the Board counsel's letter are annexed as Exhibits F and H to Defendants' motion to dismiss. Plaintiff has not cited any provision of the retainer letter, or any case law, which would impose a duty upon Defendants to independently verify the truth of representations made by the Board and its counsel that the required consent of the unit owners was obtained. Nor has plaintiff suggested how Defendants would have satisfied such a duty (i.e., whether the attorney must personally question each and every unit owner individually). Indeed, the argument seems specious, in light of the fact that plaintiff was a member of the Board at the time, and had good reasons to know whether the Board had properly solicited the requisite consent of the unit owners in connection with his purchase of the Subject Property.^[FN2]

Plaintiff also argues that Defendants were negligent in failing to notice the inconsistency between the Contract of Sale and the Amended Declaration, as to the actual square footage of residential common space that was sold to him. Defendants do not address whether they could be held liable for such a failure, and plaintiff fails to cite any relevant cases. However, because the firm was hired to represent plaintiff in his purchase of the roof common area and mechanical space from the Condo, it is reasonable to conclude that the firm's duty would encompass noticing any material inconsistency in legal documents which firm reviewed and/or revised and/or drafted in connection with the purchase. See, e.g., Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, L.L.P., 96 NY2d 300 (2001) (legal malpractice claim stated against law firm who prepared stipulation of settlement, and failed to notice a significant typographical error in the amount of settlement).^[FN3] To the extent that plaintiff may have also [*5]overlooked the inconsistency in the square footage, that fact may be pled by Defendants as a mitigating factor in the alleged malpractice. Id.

In light of the above, and in the context of a motion to dismiss where allegations of the complaint are accorded every favorable inference, Nahoum's complaint states a legal malpractice cause of action.^[FN4]

Pursuant to CPLR 214 (6), an action to recover damages for legal malpractice must be commenced within three years from the date when the alleged malpractice is committed. " What is important is when the malpractice was committed, not when the client discovered it.'" Shumsky v Eisenstein, 96 NY2d 164, 166 (2001), quoting Glamm v Allen, 57 NY2d 87, 95 (1982). The continuous legal representation doctrine recognizes that the statute of limitations for commencing a malpractice action may be tolled, if the continuing representation "pertains specifically to the matter in which the attorney committed the alleged malpractice." Shumsky, 96 NY2d at 168. In other words, the doctrine permits the tolling of the statute of limitations "until the ongoing representation is completed." Id. at 167-168.

In this case, the closing of the Subject Property took place on October 22, 2002, and the instant action was not commenced until October 6, 2006, more than three years after the closing date. Thus, the three year statute of limitations has already expired in October 2006, unless plaintiff establishes that Defendants continued to represent him specifically with respect to the Subject Property after the closing date, such that the running of the statute of limitations was tolled.

Plaintiff argues that this action is timely because Defendants transmitted the recorded deed to him on September 15, 2005, and because "the Recording and Endorsement Page to the deed reflects that defendants were Nahoum's named representatives for recordation and also reflects that counsel had recorded the deed on November 13, 2003 ... less than three years before the commencement of this action." Plaintiff's opposition brief, page 3. However, an examination of the recording and endorsement page reveals that the deed for the Subject Property was presented for recording, on behalf of plaintiff, not by Defendants but by First American Title Insurance Company of New York, and that the recorded deed was later returned to Defendants by the recording office (i.e., the Office of the City Register of the City of New York). Defendants subsequent mailing of the recorded deed to plaintiff, on or about September 13, 2005, was a ministerial act that was no more than a continuity of a general professional relationship between the parties, which did not constitute continued legal representation. Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 507 (2nd Dept. 1990) (application of the [*6]continuous legal representation is limited to situations where attorney's involvement after the alleged malpractice is for "the performance of the same or related services and is not merely the continuity of a general professional relationship").

Plaintiff also contends that he retained Defendants in connection with his "purchase and subsequent improvement" of the Subject Property and submits copies of invoices issued by Defendants, in an attempt to show that Defendants rendered services prior to and after the closing date, in connection with his purchase and improvement of the Subject Property. See invoices annexed as Exhibits A and G to plaintiff's opposition papers. Defendants argue that pursuant to the retainer letter, dated December 1, 2000, the firm's role was limited only to representation of plaintiff in the purchase of the roof common area and mechanical space of the Condo, and such representation was completed on the closing date of October 22, 2002.

With respect to the invoice dated 10/22/2002 (issued on the closing date), it reflects that in addition to other services rendered in connection with the purchase of the Subject Property, Defendants reviewed and gave comments to an Alteration Agreement. The Alteration Agreement has not been furnished to the court, neither party has described the nature and scope of the Agreement, and the Court cannot speculate as to its content or scope.

With respect to the invoice dated 5/2/2003, which covered services rendered by Defendants from 2/27/2003 through 5/2/2003, assuming these services pertained to the subsequent improvement of the Subject Property such that they constituted continuous legal representation and tolled the statute of limitations, the malpractice claim would still have been time-barred as of May 2, 2006 (i.e., adding three years to the last date of service under this invoice), which was more than five months before the complaint commencing this action was filed on October 6, 2006.^[FN5]

As to the invoices dated 10/20/2003 (for services rendered from 9/22/2003 to 10/17/2003) and 12/3/2003 (for services rendered from 10/28/2003 to 11/21/2003), they do not utterly refute plaintiff's allegation that the firm continuously represented him during the requisite period. The critical inquiry is whether any of the services rendered during these periods related to the subsequent improvement of the Subject Property, such that the continuous representation doctrine would apply, the documents about which are, as previously noted, not before the Court. Defendants argue that the doctrine does not apply because such services "relate solely to the expiration of plaintiff's insurance coverage for other and separate properties owned by plaintiff and the obtaining of property appraisals for the potential purchase and/or refinance of completely separate properties by plaintiff." Defendants' reply brief, pages 4-5.

However, the abbreviated descriptions of services in these invoices do not provide sufficiently detailed information as to whether all such services were unrelated to the subsequent improvement of the Subject Property. For example, there is a reference to "review of contractor's contract and documents regarding insurance coverage; review of AIA form contract." It is not apparent whether the contract is related to the improvements at issue here, or involves another [*7]property. Thus, the court cannot determine, based on the documentary evidence, that the continuous legal representation doctrine does not apply. Compare Griffen v Anslow, 17 AD3d 889 (3d Dept 2005) (retainer agreement and other documents conclusively established that the legal malpractice action should be dismissed because they indicated that the attorney-client relationship was not between plaintiff and defendant, but rather, was between plaintiff's corporations and defendant).

Accordingly, it is

ORDERED that the motion to dismiss is denied.

This Constitutes the Decision and Order of the court.

Dated: September 6, 2007

ENTER:

____________________

J.S.C.