        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

418
CA 16-01496
PRESENT: CENTRA, J.P., LINDLEY, CURRAN, AND TROUTMAN, JJ.


ALISON M. CARBONE, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JON W. BRENIZER AND MACHT, BRENIZER &
GINGOLD, P.C., DEFENDANTS-RESPONDENTS.


BRINDISI, MURAD, BRINDISI & PEARLMAN, LLP, UTICA (EVA BRINDISI
PEARLMAN OF COUNSEL), FOR PLAINTIFF-APPELLANT.

COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (NICOLE MARLOW-JONES OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Oneida County (Deborah
H. Karalunas, J.), entered December 3, 2015. The order granted the
motion of defendants to dismiss the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied
and the complaint is reinstated.

     Memorandum: Plaintiff commenced this legal malpractice action
alleging that defendants did not advise her properly during settlement
negotiations in the underlying matrimonial action. In her complaint,
plaintiff alleged that defendants conducted no investigation into her
ex-husband’s financial assets and instead advised her to settle the
action, assuring her that the initial settlement offer was the best
offer she would receive. She further alleged that defendants’
representation fell below the ordinary and reasonable skill and
knowledge commonly possessed by members of the legal profession and
that, but for defendants’ negligent representation, she would have
obtained a more equitable distribution of the marital assets.

     We agree with plaintiff that Supreme Court erred in granting
defendants’ motion to dismiss to the extent they relied on CPLR 3211
(a) (1). A court may grant such a motion “only where the documentary
evidence utterly refutes plaintiff’s factual allegations, conclusively
establishing a defense as a matter of law” (Goshen v Mut. Life Ins.
Co. of N.Y., 98 NY2d 314, 326; see Vassenelli v City of Syracuse, 138
AD3d 1471, 1473). In an action alleging legal malpractice during the
course of an underlying action that resulted in a settlement, “the
focus becomes whether ‘settlement of the action was effectively
compelled by the mistakes of counsel’ ” (Chamberlain, D’Amanda,
Oppenheimer & Greenfield, LLP v Wilson, 136 AD3d 1326, 1328, lv
                                 -2-                           418
                                                         CA 16-01496

dismissed 28 NY3d 942). In her affidavit in opposition to the motion,
plaintiff stated that defendants advised her that an investigation
into her ex-husband’s financial assets would be a costly and lengthy
process, but did not explain that she could apply to the court for her
ex-husband to bear the costs of the investigation. As a result,
plaintiff was convinced that she could not afford to conduct an
investigation and settled the matter without knowing what she was
giving up. Thus, although the settlement agreement in the underlying
action contained a comprehensive waiver of plaintiff’s rights, we
conclude that the language of that waiver does not conclusively
establish that plaintiff was not effectively compelled to settle by
defendants’ allegedly deficient representation (see Schiller v Bender,
Burrows & Rosenthal, LLP, 116 AD3d 756, 757; see generally CPLR 3211
[a] [1]).

     To the extent that defendants moved in the alternative to dismiss
the action as barred by the three-year statute of limitations for
legal malpractice actions (see CPLR 214 [6]; 3211 [a] [5]), we agree
with plaintiff that defendants are not entitled to that alternative
relief. “ ‘The continuous representation doctrine tolls the statute
of limitations . . . where there is a mutual understanding of the need
for further representation on the specific subject matter underlying
the malpractice claim’ ” (Zorn v Gilbert, 8 NY3d 933, 934; see R.
Brooks Assoc., Inc. v Harter Secrest & Emery LLP, 91 AD3d 1330, 1331).
Regardless of when plaintiff’s claim accrued, defendants’
representation of plaintiff in the underlying action ended, at the
earliest, upon entry of the judgment of divorce in June 2014 (see
Zorn, 8 NY3d at 934; Gaslow v Phillips Nizer Benjamin Krim & Ballon,
286 AD2d 703, 706, lv dismissed 97 NY2d 700).




Entered:   March 31, 2017                      Frances E. Cafarell
                                               Clerk of the Court
