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

83
CA 15-00450
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


KHALID S. MAHRAN AND KIDNEY CARE, P.C.,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

MICHAEL B. BERGER, ESQ., DEFENDANT-RESPONDENT.


LAW OFFICE OF STEPHEN F. SZYMONIAK, WILLIAMSVILLE (STEPHEN F.
SZYMONIAK OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

JAECKLE FLEISCHMANN & MUGEL, LLP, BUFFALO (CHARLES C. SWANEKAMP OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Erie County (John A. Michalek, J.), entered October 29, 2014.
The order and judgment granted the motion of defendant for summary
judgment, denied the cross motion of plaintiffs for partial summary
judgment and dismissed the complaint.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: In late 2004, plaintiff Khalid S. Mahran (Mahran)
offered a doctor, who was completing her residency, an opportunity to
join his medical practice, plaintiff Kidney Care, P.C. The doctor, a
noncitizen of the United States, subsequently entered into a retainer
agreement with defendant for the purpose of obtaining legal assistance
in acquiring certain immigration documents that would permit her to
practice medicine in the United States. Defendant, among other
things, filed an application for the immigration documents, stating
that he represented the doctor as the prospective employee and
plaintiffs as the sponsoring employer. The application was approved
on November 7, 2005. At some point, a dispute arose between Mahran
and the doctor over the terms of their employment agreement. When the
dispute arose, the doctor’s employment with plaintiffs was jeopardized
and, consequently, so was her immigration status. Defendant
ultimately obtained government approval allowing the doctor to secure
employment at a hospital in another state. Plaintiffs commenced this
action on November 26, 2008, alleging that defendant committed legal
malpractice and breach of contract. We conclude that Supreme Court
properly granted defendant’s motion for summary judgment dismissing
the complaint.

     Initially, contrary to plaintiffs’ contention, we conclude that
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                                                         CA 15-00450

“the court properly granted defendant’s motion with respect to the
second cause of action, for breach of contract, because it was
duplicative of the malpractice cause of action” (Rich Prods. Corp. v
Kenyon & Kenyon, LLP, 128 AD3d 1532, 1534).

     With respect to the cause of action for legal malpractice, we
further conclude that the court properly granted that part of the
motion seeking summary judgment dismissing it on the ground that it
was time-barred. “A cause of action for legal malpractice accrues
when the malpractice is committed” (Priola v Fallon, 117 AD3d 1489,
1489 [internal quotation marks omitted]), and must be interposed
within three years thereafter (see CPLR 214 [6]; McCoy v Feinman, 99
NY2d 295, 301). Even assuming, arguendo, that there is no question of
fact with respect to the existence of an attorney-client relationship
between defendant and plaintiffs, we conclude that defendant
established that any malpractice occurred, at the latest, on November
7, 2005, when his representation of plaintiffs ceased upon his
successful completion of the specific task for which he was initially
retained, i.e., acquiring the immigration documents necessary for the
doctor to commence employment with plaintiffs (see Priola, 117 AD3d at
1489; International Electron Devices [USA] LLC v Menter, Rudin &
Trivelpiece, P.C., 71 AD3d 1512, 1512). Defendant thus met his
initial burden of establishing that this action, commenced on November
26, 2008, was time-barred (see International Electron Devices [USA]
LLC, 71 AD3d at 1512).

     “The burden then shifted to plaintiffs to raise a triable issue
of fact whether the statute of limitations was tolled by the
continuous representation doctrine” (id.), and plaintiffs “failed to
meet that burden inasmuch as [they] failed to present the requisite
clear indicia of an ongoing, continuous, developing, and dependent
relationship between the client and the attorney to toll the statute
of limitations” (Priola, 117 AD3d at 1490 [internal quotation marks
omitted]). The continuous representation doctrine does not apply here
inasmuch as there was no continuity of services provided by defendant
to plaintiffs in conjunction with the application for the doctor’s
immigration documents, and no mutual understanding that plaintiffs
required further legal work in that regard (see M.G. McLaren, P.C. v
Massand Eng’g, L.S., P.C., 51 AD3d 878, 878). Indeed, despite
Mahran’s assertions, his unilateral belief that defendant continued to
represent plaintiffs after the immigration application process was
completed is insufficient to establish the existence of a continuing
relationship (see Chinello v Nixon, Hargrave, Devans & Doyle, LLP, 15
AD3d 894, 895). Although the completion of that process provided the
prerequisite conditions for the doctor’s employment, the dispute that
arose between Mahran and the doctor with respect to the employment
agreement constituted a separate contractual matter concerning those
parties only, and we conclude that any evidence of subsequent contact
between defendant and Mahran with respect to that dispute is not
indicative of a continuing attorney-client relationship, and thus is
insufficient to raise an issue of fact (see M.G. McLaren, P.C., 51
AD3d at 878). To the extent that plaintiffs contend that the statute
of limitations should be tolled during the period of defendant’s
continuing representation of the doctor, that contention is without
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                                                        CA 15-00450

merit (see Glamm v Allen, 57 NY2d 87, 94; TVGA Eng’g, Surveying, P.C.
v Gallick [appeal No. 2], 45 AD3d 1252, 1257). We thus conclude that,
“[i]nasmuch as the attorney-client relationship between plaintiff[s]
and [defendant] ended more than three years before the action was
commenced, the cause of action for legal malpractice was untimely”
(TVGA Eng’g, Surveying, P.C., 45 AD3d at 1257).




Entered:   March 25, 2016                      Frances E. Cafarell
                                               Clerk of the Court
