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 defendantsrespondents (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