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

1415
CA 14-00883
PRESENT: SMITH, J.P., FAHEY, WHALEN, AND DEJOSEPH, JJ.


GARY M. DISCHIAVI AND LINDA DISCHIAVI,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

WILLIAM S. CALLI, JR., AS ADMINISTRATOR OF
THE ESTATE OF WILLIAM S. CALLI, DECEASED,
ROBERT CALLI, CALLI, CALLI AND CULLY, CALLI,
CALLI AND CULLY, LLP, CALLI AND CALLI, LP,
ANDREW S. KOWALCZYK, JOSEPH STEPHEN DEERY, JR.,
THOMAS S. SOJA, CALLI, KOWALCZYK, TOLLES,
DEERY AND SOJA, DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANT.


LUIBRAND LAW FIRM, PLLC, LATHAM (KEVIN A. LUIBRAND OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

KERNAN AND KERNAN, P.C., UTICA (LEIGHTON R. BURNS OF COUNSEL), FOR
DEFENDANT-RESPONDENT WILLIAM S. CALLI, JR., AS ADMINISTRATOR OF THE
ESTATE OF WILLIAM S. CALLI, DECEASED.

GEORGE F. ANEY, HERKIMER, FOR DEFENDANT-RESPONDENT ROBERT CALLI.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KAREN FELTER OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS ANDREW S. KOWALCZYK, JOSEPH
STEPHEN DEERY, JR. AND CALLI, KOWALCZYK, TOLLES, DEERY AND SOJA.

GETNICK LIVINGSTON ATKINSON & PRIORE, LLP, UTICA (MICHAEL E. GETNICK
OF COUNSEL), FOR DEFENDANT-RESPONDENT THOMAS S. SOJA.


     Appeal from an order of the Supreme Court, Oneida County (James
P. McClusky, J.), dated March 3, 2014. The order, insofar as appealed
from, granted the motions of defendants-respondents to preclude
plaintiffs from introducing certain evidence at trial.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs and the motions are
denied.

     Memorandum: In this legal malpractice action, plaintiffs appeal
from that part of an order granting the motions of defendants-
respondents (hereafter, defendants) to preclude plaintiffs from
introducing certain evidence at trial. We agree with plaintiffs that
Supreme Court erred in granting the motions, and we therefore reverse
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                                                         CA 14-00883

the order insofar as appealed from.

     This case has been before us on two prior occasions (Dischiavi v
Calli [appeal No. 2], 68 AD3d 1691 [Dischiavi I]; Dischiavi v Calli,
111 AD3d 1258 [Dischiavi II]), both involving, inter alia, the motions
of various defendants for summary judgment. In both appeals, at least
some defendants sought summary judgment dismissing the legal
malpractice cause of action based upon the expiration of the statute
of limitations, and we rejected that contention in both prior appeals.
Specifically, in Dischiavi I, we concluded that, “[w]ith respect to
the legal malpractice cause of action, there is a triable issue of
fact whether plaintiffs are entitled to the toll provided by the
continuous representation doctrine” (68 AD3d at 1694). Again in
Dischiavi II, we affirmed that part of the order on appeal that denied
the various defendants’ motions for summary judgment on the ground
“that plaintiffs raised a triable issue of fact whether the doctrine
of continuous representation tolled the statute of limitations” (111
AD3d at 1260-1261).

     The matter progressed toward trial after this Court issued its
decision in Dischiavi II. In the order on appeal, the court granted
defendants’ motions to preclude plaintiffs from introducing evidence
that any of the defendants represented plaintiffs with respect to any
issue other than an issue in the context of a medical malpractice
action against a physician. The effect of that order was to limit
plaintiffs to introducing evidence that, in 1994, one of the
defendants made a statement to Gary M. Dischiavi (plaintiff)
indicating that the medical malpractice action was not viable.

     We note at the outset that, although the parties do not address
the appealability of this order determining a motion in limine, we
conclude that plaintiffs may appeal from the order at issue (see
Franklin Corp. v Prahler, 91 AD3d 49, 54). “Generally, an order
ruling [on a motion in limine], even when made in advance of trial on
motion papers constitutes, at best, an advisory opinion which is
neither appealable as of right nor by permission” (Innovative
Transmission & Engine Co., LLC v Massaro, 63 AD3d 1506, 1507 [internal
quotation marks omitted]; see Scalp & Blade v Advest, Inc., 309 AD2d
219, 224). This Court has noted, however, that “there is a
distinction between an order that ‘limits the admissibility of
evidence,’ which is not appealable . . . , and one that ‘limits the
legal theories of liability to be tried’ or the scope of the issues at
trial, which is appealable” (Scalp & Blade, 309 AD2d at 224). Here,
the order precluded the introduction of the vast majority of the
evidence on the issue whether defendants continued to represent
plaintiffs so as to toll the statute of limitations, and thus it is
appealable because it limits the scope of the issues at trial (see
generally O’Donnell v Ferguson, 100 AD3d 1534, 1535-1536; Catanese v
Furman, 27 AD3d 1050, 1051).

     With respect to the substantive issue, we note that, after our
determinations in Dischiavi I and Dischiavi II that there was a
triable issue of fact whether the doctrine of continuous
representation tolled the statute of limitations, the court granted
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                                                         CA 14-00883

those parts of defendants’ motions in limine seeking to preclude
plaintiffs from offering evidence to establish that there had been
such representation. Although the court has broad discretion to
determine the admissibility of evidence, we agree with plaintiffs that
the court abused that discretion here. Defendants are correct that,
“in the context of a legal malpractice action, the continuous
representation doctrine tolls the [s]tatute of [l]imitations only
where the continuing representation pertains specifically to the
matter in which the attorney committed the alleged malpractice”
(Shumsky v Eisenstein, 96 NY2d 164, 168). The continuous
representation doctrine is derived from the continuous treatment
doctrine in medical malpractice cases (see Mercone v Monroe County
Deputy Sheriffs' Assn., Inc., 90 AD3d 1698, 1699; Pollicino v Roemer &
Featherstonhaugh, 260 AD2d 52, 54), however, and as the Court of
Appeals explained later in Shumsky, “[i]ncluded within the scope of
continuous treatment is a timely return visit instigated by the
patient to complain about and seek treatment for a matter related to
the initial treatment” (id. at 170 [internal quotation marks
omitted]). Thus, the statute of limitations in a legal malpractice
action is tolled where, as here, a “defendant continuously represented
the plaintiffs during [the relevant] period by performing legal
services related to the matter out of which the malpractice claim
arose” (Kuritzky v Sirlin & Sirlin, 231 AD2d 607, 608).

     Furthermore, in both prior appeals we concluded that there was a
triable issue of fact whether the statute of limitations was tolled
because, in opposition to the various defendants’ motions for summary
judgment, plaintiffs raised a triable issue of fact whether one or
more of the defendants continued to represent plaintiffs on a related
matter (Dischiavi I, 68 AD3d at 1694; Dischiavi II, 111 AD3d at 1260-
1261). We reached that conclusion because, in opposition to
defendants’ motions for summary judgment, plaintiffs “adduced
persuasive evidence establishing that [defendants] performed
continuing legal services [throughout the time during which the
statute is alleged to have been tolled] to correct [their] alleged
failure to effectively” commence an action to recover damages for
plaintiff’s injuries (N&S Supply v Simmons, 305 AD2d 648, 650). Here,
the evidence that defendants sought to preclude was highly relevant to
the issue whether the actions in question involved “an attempt by the
attorney to rectify an alleged act of malpractice” that would
constitute continuing representation sufficient to toll the statute of
limitations (Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505,
506-507; see Weiss v Manfredi, 83 NY2d 974, 977, rearg denied 84 NY2d
848; DeStaso v Condon Resnick, LLP, 90 AD3d 809, 812-813).

     Consequently, we reverse the order insofar as appealed from and
deny the motions.




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
