SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

83 

CA 15-00450 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ. 

 

KHALID S. MAHRAN AND KIDNEY CARE, P.C., 

PLAINTIFFS-APPELLANTS, 

V MEMORANDUM AND ORDER

MICHAEL B. BERGER, ESQ., DEFENDANT-RESPONDENT.

 

LAW OFFICE OF STEPHEN F. SZYMONIAK, WILLIAMSVILLE (STEPHEN F.

SZYMONIAK OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

JAECKLE FLEISCHMANN & MUGEL, LLP, BUFFALO (CHARLES C. SWANEKAMP OF

COUNSEL), FOR DEFENDANT-RESPONDENT. 

 

Appeal from an order and judgment (one paper) of the Supreme

Court, Erie County (John A. Michalek, J.), entered October 29, 2014. 

The order and judgment granted the motion of defendant for summary

judgment, denied the cross motion of plaintiffs for partial summary

judgment and dismissed the complaint. 

It is hereby ORDERED that the order and judgment so appealed from

is unanimously affirmed without costs.

Memorandum: In late 2004, plaintiff Khalid S. Mahran (Mahran)

offered a doctor, who was completing her residency, an opportunity to

join his medical practice, plaintiff Kidney Care, P.C. The doctor, a

noncitizen of the United States, subsequently entered into a retainer

agreement with defendant for the purpose of obtaining legal assistance

in acquiring certain immigration documents that would permit her to

practice medicine in the United States. Defendant, among other

things, filed an application for the immigration documents, stating

that he represented the doctor as the prospective employee and

plaintiffs as the sponsoring employer. The application was approved

on November 7, 2005. At some point, a dispute arose between Mahran

and the doctor over the terms of their employment agreement. When the

dispute arose, the doctor’s employment with plaintiffs was jeopardized

and, consequently, so was her immigration status. Defendant

ultimately obtained government approval allowing the doctor to secure

employment at a hospital in another state. Plaintiffs commenced this

action on November 26, 2008, alleging that defendant committed legal

malpractice and breach of contract. We conclude that Supreme Court

properly granted defendant’s motion for summary judgment dismissing

the complaint.

Initially, contrary to plaintiffs’ contention, we conclude that
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CA 15-00450 

“the court properly granted defendant’s motion with respect to the

second cause of action, for breach of contract, because it was

duplicative of the malpractice cause of action” (Rich Prods. Corp. v

Kenyon & Kenyon, LLP, 128 AD3d 1532, 1534).

With respect to the cause of action for legal malpractice, we

further conclude that the court properly granted that part of the

motion seeking summary judgment dismissing it on the ground that it

was time-barred. “A cause of action for legal malpractice accrues

when the malpractice is committed” (Priola v Fallon, 117 AD3d 1489,

1489 [internal quotation marks omitted]), and must be interposed

within three years thereafter (see CPLR 214 [6]; McCoy v Feinman, 99

NY2d 295, 301). Even assuming, arguendo, that there is no question of

fact with respect to the existence of an attorney-client relationship

between defendant and plaintiffs, we conclude that defendant

established that any malpractice occurred, at the latest, on November

7, 2005, when his representation of plaintiffs ceased upon his

successful completion of the specific task for which he was initially

retained, i.e., acquiring the immigration documents necessary for the

doctor to commence employment with plaintiffs (see Priola, 117 AD3d at

1489; International Electron Devices [USA] LLC v Menter, Rudin &

Trivelpiece, P.C., 71 AD3d 1512, 1512). Defendant thus met his

initial burden of establishing that this action, commenced on November

26, 2008, was time-barred (see International Electron Devices [USA]

LLC, 71 AD3d at 1512).

“The burden then shifted to plaintiffs to raise a triable issue

of fact whether the statute of limitations was tolled by the

continuous representation doctrine” (id.), and plaintiffs “failed to

meet that burden inasmuch as [they] failed to present the requisite

clear indicia of an ongoing, continuous, developing, and dependent

relationship between the client and the attorney to toll the statute

of limitations” (Priola, 117 AD3d at 1490 [internal quotation marks

omitted]). The continuous representation doctrine does not apply here

inasmuch as there was no continuity of services provided by defendant

to plaintiffs in conjunction with the application for the doctor’s

immigration documents, and no mutual understanding that plaintiffs

required further legal work in that regard (see M.G. McLaren, P.C. v

Massand Eng’g, L.S., P.C., 51 AD3d 878, 878). Indeed, despite

Mahran’s assertions, his unilateral belief that defendant continued to

represent plaintiffs after the immigration application process was

completed is insufficient to establish the existence of a continuing

relationship (see Chinello v Nixon, Hargrave, Devans & Doyle, LLP, 15

AD3d 894, 895). Although the completion of that process provided the

prerequisite conditions for the doctor’s employment, the dispute that

arose between Mahran and the doctor with respect to the employment

agreement constituted a separate contractual matter concerning those

parties only, and we conclude that any evidence of subsequent contact

between defendant and Mahran with respect to that dispute is not

indicative of a continuing attorney-client relationship, and thus is

insufficient to raise an issue of fact (see M.G. McLaren, P.C., 51

AD3d at 878). To the extent that plaintiffs contend that the statute

of limitations should be tolled during the period of defendant’s

continuing representation of the doctor, that contention is without
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CA 15-00450 

merit (see Glamm v Allen, 57 NY2d 87, 94; TVGA Eng’g, Surveying, P.C.

v Gallick [appeal No. 2], 45 AD3d 1252, 1257). We thus conclude that,

“[i]nasmuch as the attorney-client relationship between plaintiff[s]

and [defendant] ended more than three years before the action was

commenced, the cause of action for legal malpractice was untimely”

(TVGA Eng’g, Surveying, P.C., 45 AD3d at 1257).

Entered: March 25, 2016 Frances E. Cafarell

Clerk of the Court