• Claims for Legal Malpractice and Breach of Fiduciary Duty Barred by the Statute of Limitations: Elmakies v Sunshine
  • December 10, 2012 | Author: Adam M. Rafsky
  • Law Firm: Farrell Fritz, P.C. - Uniondale Office
  • In a September 24, 2012 decision by Justice DeStefano, the court granted the defendants’ motion to dismiss the complaint, which included causes of action for legal malpractice and breach of fiduciary. The defendants, law firms and their named partners, were retained by the plaintiff with respect to investments in real and personal property that the plaintiff was persuaded into making by certain of his “business partners”.

    The plaintiff alleged that once the defendants were in possession of the investment funds, they rendered advice about the investments and provided legal services to the business partners, whom they were not authorized to represent, and failed to disclose to their conflict of interest. The plaintiff claimed that at the business partners’ direction, and without his authorization, the defendants’ helped to form entities that were ostensibly owned by the plaintiff but were actually controlled by the business partners. Therefore, the plaintiff alleged, he was defrauded of his investment through the defendants’ mishandling and unauthorized use of the investment funds.

    The court found that the plaintiff failed to make any argument or factual allegation to rebut the defendants’ position that the last date of representation was October 5, 2007, and further that the complaint lacked any reference to the dates on which the defendants performed services for the plaintiff.  Therefore, the court held that in order to be timely, the claims had to have been asserted by October 4, 2010, and that because they were brought after that date, they were barred by the statute of limitations.

    Elmakies v Sunshine, Sup Ct, Nassau County, September 24, 2012, DeStefano, J., Index No. 16965/11