McCoy v. Feinman , 737 N.Y.S.2d 481 ( 2002 )

—Appeal from an order of Supreme Court, Erie County (Rath, Jr., J.) entered September 8, 2000, which granted defendants’ motion for summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs.

Memorandum: Supreme Court properly granted defendants’ motion for summary judgment dismissing the complaint in this legal malpractice action as time barred. In January 1986 plaintiff retained defendants to represent her in an action for divorce. A stipulation of settlement was placed on the record on June 23, 1987 and filed with the judgment of divorce on June 14, 1988. In placing the stipulation of settlement on the record, defendant Kenneth L. Feinman stated:

“Your Honor, [plaintiffs former husband] maintains a pension plan through his employment at Harrison Radiator. And it is agreed by the parties that [plaintiff] shall receive a portion of this pension plan calculated with recourse pursuant to the formulas set forth in the case of Majauskas and Szulgit * * *.

“Your Honor, the pension shall be divided pursuant to the figures I have just indicated by recourse to a Qualified Domestic Relations Order [QDRO] which my office shall prepare and submit to the Court either simultaneously with or shortly after the judgment of divorce.”

The parties agree that defendants failed to prepare and file a QDRO. When plaintiffs former husband died on September 1, 1994, at the age of 45, plaintiff learned that she would not be eligible to receive any of his pre-retirement death benefits because his pension plan did not provide for those benefits and no QDRO had been filed. This action was commenced on June 12, 1996.

According to defendants, the alleged malpractice was their failure to negotiate and procure preretirement death benefits with respect to the June 23, 1987 stipulation and thus, at the latest, the statute of limitations began to run when the judgment of divorce was entered without the QDRO. According to plaintiff, the malpractice was defendants’ failure to file the QDRO but the statute of limitations did not begin to run until she suffered actual ascertainable damages, i.e., at the time of her former husband’s death (see, Dana v Oak Park Mar., 230 AD2d 204, 210).

We conclude that the date on which the judgment of divorce was entered without a QDRO, which precluded plaintiff from receiving either pre or postretirement benefits, was the date of injury. The statute of limitations therefore began to run on that date, rendering this action time barred (see, Ackerman v Price Waterhouse, 84 NY2d 535, 541-543). In Ackerman, an action against an accounting firm, the Court of Appeals determined that the date of injury, and thus the date on which the statute of limitations began to run, was the date of the client’s receipt of the tax forms and schedules prepared by the accounting firm, not the date on which the Internal Revenue Service determined that additional taxes were due (see, Ackerman v Price Waterhouse, supra, at 543). In so holding, the Court of Appeals noted the desirability in malpractice cases against professionals of having a predictable date of injury to mark the commencement of the statute of limitations. The Court wrote, "The utter lack of predictability inherent in a Statute of Limitations based on the date the IRS assesses a deficiency is apparent from the fact that [the accounting firm] would remain liable for work performed a decade ago even though traditional principles governing negligence actions instruct that plaintiff was injured, and any claim accrued upon performance of the professional service” (Ackerman v Price Waterhouse, supra at 543). Contrary to the contention of plaintiff, the fact that she was unaware of the act of malpractice when the judgment of divorce was entered and did not learn of it until after her former husband’s death is not dispositive (see, Shumsky v Eisenstein, 96 NY2d 164, 166; Glamm v Allen, 57 NY2d 87, 93). Here, as in Ackerman (supra), there would be no predictability in a statute of limitations based on the date of death or the date of retirement; indeed, either event could have occurred 20 or more years after the filing of the judgment of divorce.

We have reviewed plaintiffs contention with respect to the continuous representation doctrine (see generally, Glamm v Allen, supra at 93-94) and conclude that it is without merit.

All concur except Hayes, J.P., and Scudder, J., who dissent and vote to reverse in the following memorandum.