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

631
CA 12-02238
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


DANIEL ELSTEIN, HILTON ENTERPRISES, INC.,
AND TRASON HILTON, LLC, PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

PHILLIPS LYTLE, LLP, ALBERT M. MERCURY,
DEFENDANTS-RESPONDENTS,
AND ALFRED D. SPAZIANO, DEFENDANT.


DAVIDSON FINK, LLP, ROCHESTER (DAVID L. RASMUSSEN OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

CONNORS & VILARDO, LLP, BUFFALO (LAWRENCE J. VILARDO OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Matthew
A. Rosenbaum, J.), entered March 5, 2012. The order granted the
motion of defendants Phillips Lytle, LLP, and Albert M. Mercury and
dismissed the complaint against those defendants.

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

     Memorandum: In this legal malpractice action, plaintiffs appeal
from an order granting the motion of Phillips Lytle, LLP and Albert M.
Mercury (defendants) seeking dismissal of the complaint against them
as time-barred. Plaintiffs contend that Supreme Court erred in
determining the accrual date of their action, for legal malpractice.
We reject that contention. “ ‘A cause of action for legal malpractice
accrues when the malpractice is committed’ ” (Amendola v Kendzia, 17
AD3d 1105, 1108; see Glamm v Allen, 57 NY2d 87, 93). “In most cases,
this accrual time is measured from the day an actionable injury
occurs, ‘even if the aggrieved party is then ignorant of the wrong or
injury’ ” (McCoy v Feinman, 99 NY2d 295, 301, quoting Ackerman v Price
Waterhouse, 84 NY2d 535, 541). “ ‘What is important is when the
malpractice was committed, not when the client discovered it’ ” (id.,
quoting Shumsky v Eisenstein, 96 NY2d 164, 166). Here, the alleged
malpractice occurred no later than 2003, when plaintiff Daniel Elstein
completed his acquisition of plaintiff Hilton Enterprises, Inc.
(Hilton) from defendant Alfred D. Spaziano. Indeed, there is no
indication in the record that defendants represented plaintiffs after
that date. This action was not commenced until approximately eight
years later, on March 4, 2011, and is thus time-barred under the
applicable three-year statute of limitations (see CPLR 214 [6]).
                                 -2-                           631
                                                         CA 12-02238

     We reject plaintiffs’ contention that they were unable to sue
defendants for malpractice until March 7, 2008, when the judgment was
entered against Hilton, inasmuch as that is when they sustained an
actionable injury. As the Court of Appeals has made clear, a
malpractice claim becomes actionable when the plaintiff’s damages
become “sufficiently calculable” (McCoy, 99 NY2d at 305; see Ackerman,
84 NY2d at 541-542), and, here, plaintiffs’ damages arising from the
alleged legal malpractice were sufficiently calculable in January
2007, when plaintiffs learned of the alleged malpractice, if not
sooner.




Entered:   July 5, 2013                        Frances E. Cafarell
                                               Clerk of the Court
