                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: May 12, 2016                       521857
________________________________

CHEYENNE BAER et al.,
                    Plaintiffs,
      v

LAW OFFICES OF MORAN &
   GOTTLIEB et al.,
                    Defendants
                    and Third-
                    Party                    MEMORANDUM AND ORDER
                    Plaintiffs-
                    Appellants;

DAVID J. CLEGG,
                    Third-Party
                    Defendant-
                    Respondent.
________________________________


Calendar Date:    March 23, 2016

Before:   Peters, P.J., Lahtinen, Rose, Lynch and Aarons, JJ.

                              __________


      Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Gerard
Benvenuto of counsel), for defendants and third-party plaintiffs-
appellants.

      Cabaniss Casey LLP, Albany (David B. Cabaniss of counsel),
for third-party defendant-respondent.

                              __________


Aarons, J.

      Appeal from an order of the Supreme Court (Mott, J.),
entered May 4, 2015 in Ulster County, which granted third-party
defendant's motion to dismiss the third-party complaint.
                              -2-                521857

      In December 2004, plaintiffs engaged defendants, a law firm
and an individual attorney, to prosecute potential claims arising
from the allegedly negligent medical care that their infant son
received from March to April 2004. In 2008, defendant Steven
Gottlieb, without having filed a complaint in connection with
those claims, referred plaintiffs to third-party defendant, David
J. Clegg, an attorney with experience in medical malpractice
litigation. Clegg was formally retained in August 2008 and filed
a complaint for plaintiffs' son in February 2010. No derivative
claims were pleaded on behalf of plaintiffs in the complaint that
Clegg prepared. The medical malpractice action eventually
settled and, thereafter, plaintiffs commenced the instant legal
malpractice action against defendants, alleging that they
negligently failed to assert plaintiffs' derivative claims before
the statute of limitations had expired thereon. Defendants
impleaded, among others no longer involved in the action, Clegg,
who then made a pre-answer motion to dismiss the third-party
complaint, arguing that the statute of limitations on plaintiffs'
derivative claims had expired before he became involved in their
son's case. Supreme Court granted Clegg's motion, and defendants
now appeal.

      We affirm. "An attorney sued for malpractice is entitled
to commence a third-party claim for contribution [or
indemnification] against a subsequent attorney whose negligence
has contributed to or aggravated the plaintiff's damages" (Hansen
v Brognano, 137 AD2d 880, 881 [1988] [citation omitted]; see CPLR
1401; Schauer v Joyce, 54 NY2d 1, 5 [1981]; M & R Ginsburg, LLC v
Segel, Goldman, Mazzotta & Siegel, P.C., 121 AD3d 1354, 1354-1355
[2014]; Soussis v Lazer, Aptheker, Rosella & Yedid, P.C., 66 AD3d
993, 995 [2009]). In that regard, where the limitations period
applicable to a potential action is indisputable, an attorney's
"fail[ure] to commence [the] action within [that time frame]
. . . f[alls] below the ordinary and reasonable skill and
knowledge commonly possessed in the legal profession" and, absent
countervailing considerations, constitutes negligence (Bergin v
Grace, 39 AD3d 1017, 1018 [2007] [internal quotation marks and
citation omitted]; see Wilk v Lewis & Lewis, P.C., 75 AD3d 1063,
1066 [2010]; compare Mignott v Kreidman, 65 AD3d 972, 972
[2009]).
                              -3-                521857

      As is relevant here, an action for medical malpractice
"must be commenced within two years and six months of the act,
omission or failure complained of or last treatment where there
is continuous treatment for the same illness, injury or condition
which gave rise to the said act, omission or failure" (CPLR
214-a; see Johanson v Sullivan, 68 AD3d 1303, 1304 [2009]; Cahill
v Lat, 39 AD3d 1013, 1014 [2007]). Notwithstanding that time
frame, an individual that is "under a disability because of
infancy . . . at the time the cause of action accrues" is
entitled to a 10-year toll of the limitations period (CPLR 208;
see Henry v City of New York, 94 NY2d 275, 279-282 [1999]; Dugan
v Troy Pediatrics LLP, 105 AD3d 1188, 1189 [2013]). However,
"neither the infancy toll nor the continuous treatment toll
applies to derivative claims" (Cahill v Lat, 39 AD3d at 1014; see
Devadas v Niksarli, 120 AD3d 1000, 1008 [2014]; Chambers v
Mirkinson, 68 AD3d 702, 706 [2009]; Boyle v Fox, 51 AD3d 1243,
1245 [2008], lv denied 11 NY3d 701 [2008]; Whipple v Goldsmith,
202 AD2d 834, 835 [1994]). Finally, on a motion to dismiss a
third-party complaint for failure to state a cause of action
pursuant to CPLR 3211 (a) (7), this Court must "accept the facts
as alleged in the [third-party] complaint as true, accord [the
third-party plaintiffs] the benefit of every possible favorable
inference, and determine only whether the facts as alleged fit
within any cognizable legal theory" (Slezak v Stewart's Shops
Corp., 133 AD3d 1179, 1179 [2015] [internal quotation marks and
citation omitted]; see State of N.Y. Workers' Compensation Bd. v
26-28 Maple Ave., Inc., 80 AD3d 1135, 1137 [2011]).

      It is uncontested that plaintiffs' potential claims against
defendants in their son's medical malpractice case were purely
derivative in nature. Hence, plaintiffs could not take advantage
of either the continuous treatment or infancy toll (see Bazile v
City of New York, 94 AD3d 929, 930 [2012]; Boyle v Fox, 51 AD3d
at 1245; Cahill v Lat, 39 AD3d at 1014), and the statute of
limitations with respect to their derivative claims expired, at
the latest, in October 2006 – well before Clegg is alleged to
have first become involved with plaintiffs' medical malpractice
case in 2008. Clegg cannot be faulted for failing to plead an
indisputably time-barred cause of action (see Hassan v Wallach,
92 AD3d 446, 447 [2012]; see generally Rules of Professional
Conduct [22 NYCRR 1200.0] rule 3.1 [a], [b] [1]) and, therefore,
                              -4-                  521857

the third-party complaint was properly dismissed for failure to
state a cause of action for either contribution or
indemnification against him. This determination makes it
unnecessary to address Clegg's further argument that the third-
party complaint was properly dismissed based upon documentary
evidence (see CPLR 3211 [a] [1]). Defendants' remaining
contentions have been examined and found to be without merit.

     Peters, P.J., Lahtinen, Rose and Lynch, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
