This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 5
Red Zone LLC,
            Respondent,
        v.
Cadwalader, Wickersham & Taft
LLP,
            Appellant.




            David R. Marriott, for appellant.
            Jeffrey A. Jannuzzo, for respondent.




MEMORANDUM:
            The order of the Appellate Division should be modified,
with costs, by denying plaintiff's motion for summary judgment
and reinstating defendant's affirmative defenses of the statute
of limitations and comparative negligence and, as so modified,
affirmed.

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           Viewing the evidence in the light most favorable to
defendant as the non-movant (see generally Vega v Restani Constr.
Corp., 18 NY3d 499, 503 [2012]; Ortiz v Varsity Holdings, LLC, 18
NY3d 335, 339 [2011]), material triable questions of fact exist
regarding whether defendant failed to exercise the ordinary
reasonable skill and knowledge commonly possessed by members of
the legal profession (see Dombrowski v Bulson, 19 NY3d 347, 350
[2012]).   While a party may not create a feigned issue of fact to
defeat summary judgment (see S.J. Capelin Assoc. v Globe Mfg.
Corp., 34 NY2d 338, 341 [1974]), contrary to plaintiff's
assertion here, the affidavit of the attorney who represented
plaintiff did not flatly contradict his prior deposition
testimony.   Therefore, the affidavit should have been considered
in opposition to plaintiff's motion.
           Similarly, plaintiff did not meet its burden of
demonstrating that defendant's statute of limitations defense
fails as a matter of law.   Specifically, triable questions of
fact exist regarding whether the statute of limitations was
tolled by the continuous representation doctrine in light of: the
significant gap in time between the alleged malpractice and the
later communications between the parties; the changed nature of
the alleged legal representation of plaintiff by defendant; the
absence of any clear delineation of the period of such
representation; and defendant's submission of affidavits
disclaiming any mutual understanding of legal representation


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after 2005 (see generally Grace v Law, 24 NY3d 203, 212 [2014]).
*   *   *   *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order modified, with costs, by denying plaintiff's motion for
summary judgment and reinstating defendant's affirmative defenses
of statute of limitations and comparative negligence and, as so
modified, affirmed, in a memorandum. Judges Pigott, Rivera,
Abdus-Salaam, Stein and Garcia concur. Chief Judge DiFiore and
Judge Fahey took no part.

Decided June 2, 2016




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