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Decided on July 30, 2009
Supreme Court, New York County

601951/08
Walter B. Tolub, J.
In this attorney malpractice action, defendant Buchanan Ingersoll & Rooney PC (BI & R) moves, pursuant to CPLR 214 [6] and 3211 (a) (5), for an order dismissing this action on the ground that the pleading is barred by the statute of limitations.
Plaintiff CMI Capital Market Investments, LLC (CMI) is a domestic investment firm that brokers the sale of stocks and bonds. CMI's principal place of business is located in New York, New York.
BI & R is a Pennsylvania law firm with its principal place of business in Pittsburgh, Pennsylvania. BI & R is registered with the State of New York as a foreign corporation and it maintains an office in New York City.
The following allegations are taken from the complaint. In the fall of 2000, CMI hired Carl Saling, a senior municipal bond broker with more than 30 years experience, to join the firm. Shortly thereafter, Saling began working in the area of private placements which involved municipal lease transactions within the United States and in the Commonwealth of Puerto Rico. In the fall of 2002, Saling became acquainted with Richard J. Schmeelk, William B. Finneran and JIRA Associates LO (collectively, the Investors). CMI and the Investors agreed to establish a trust, known as the PR Tax Exempt Lease Certificate Trust, 2002 Series A (the Trust), by which CMI would purchase leases that involved the leasing of equipment, software, and other such goods, by the Commonwealth of Puerto Rico. The Trust acquired an assignment of the right to collect payments, due and owing on the leases in the Trust (from the Commonwealth of Puerto Rico) in exchange for a payment of approximately $2,500,000.
The corpus of the Trust consisted of interests in eighteen leases, that included a tax-exempt lease purchase (OAT Lease) and option agreement with the Office of Courts Administration of the General Court of Justice for the Commonwealth of Puerto Rico (OAT). The OAT Lease was purchased from AA Public Financing (AA), the original lessor by way of assignment. AA's president, Alvin Aguirre, and Saling had worked together in several prior lease transactions. As the OAT Lease's assignee, the Trust was to receive two annual lease payments of $771,449.12 on July 15, 2003, and July 15, 2004, for a total sum of $1,542,898.24.
CMI retained BI & R's services to, among other things, conduct the necessary due diligence to determine which leases would be attractive acquisitions for the Trust. BI & R was [*2]responsible for vetting each of the potential lease purchases prior to its acquisition. Several leases were rejected from the potential list as they were deemed risky or inappropriate by BI & R. Based on BI & R's recommendation, the Trust acquired several leases from AA and Aguirre, which included the OAT Lease. The Trust closed, and all transactions were finalized on December 3, 2002, at which time the Trust was to have clear title to more than eighteen leases that included the OAT Lease.
In July 2003, CMI was informed that there was a second party claiming to have purchased the Oat Lease from AA and Aguirre. The second party claimed to be the rightful holder of the assignment of the OAT Lease and the payments to be made thereunder. OAT alleged that the signature on the acknowledgment of assignment concerning the OAT Lease to the Trust was a forgery. As a result of the dispute regarding the ownership of the OAT Lease, OAT filed an Interpleder action in the United States District Court for the District of Puerto Rico, entitled Office of Courts Administration of the General Court of Justice for the Commonwealth of Puerto Rico v AA Public Finance Co., et al., Civil Action No. 03-1772 [JHG] (the Puerto Rico Action), against CMI and others, citing confusion as to the rightful owner of the remaining two lease payments, and deposited the funds with the Court.
In response, CMI and the Trust's trustee, Wilmington Trust Company (Wilmington), filed a counterclaim against OAT for breach of contract and wrongful deposit. CMI and Wilmington also filed a crossclaim against the other competing assignment holders, Lehigh Municipal Leasing (Lehigh) and Strong Capital Management (Strong). Lehigh and Strong subsequently filed a crossclaim against CMI and Wilmington. As a result of the dispute over the rightful owner of the OAT Lease, no lease payments were ever made to the Trust, and the Investors suffered the loss of their investment in the OAT Lease.
On July 1, 2004, CMI and BI & R entered into a tolling agreement (Tolling Agreement), whereby the statute of limitations applicable to any claims between CMI and BI & R were abated until the expiration of the agreement on July 1, 2005.
On March 31, 2005, the Investors filed suit against CMI and Saling in New York State Supreme Court, in an action entitled Richard J. Schmeelk et al. v CMI Capital Marketing Investment, LLC et al., Index No. 601148/05 (the New York Action), which was amended on July 20, 2005 to add Lee Hayes, a CMI shareholder, as a defendant, seeking damages for CMI's alleged negligence in relation to the purchase of the OAT Lease.
On May 28, 2005, the Investors filed a Notice of Default in the New York Action. On June 20, 2008, the Investors filed a Notice of Motion, seeking entry of a default judgment against CMI for $920,000. The complaint does not describe the outcome of the New York Action.
As a result of the above, CMI commenced this action asserting a single cause of action for attorney malpractice. CMI is seeking to recover compensatory damages in the amount of $920,000, attorney fees expended defending the Puerto Rico and New York actions, disgorgement of fees paid to BI & R for its negligent representation of CMI in the underlying transaction, pre-judgment and post-judgment interest, attorneys' fees, and costs and disbursements in connection with this action.
BI & R argues that it is entitled to dismissal because: (1) the three-year statute of limitations for legal malpractice actions bars CMI's action against it, (2) BI & R completed the formation of the Trust and related transactions, including the acquisition of the OAT Lease on [*3]December 3, 2002, and (3) although the parties entered into the Tolling Agreement on July 1, 2004 for a period of one year, that agreement did not alter the date of accrual of the alleged cause of action for malpractice.
CMI argues that BI & R is not entitled to dismissal because: (1) the Tolling Agreement executed between the parties abated the statute of limitations, recommencing anew on the expiration of the Tolling Agreement, or (2) in the alternative, a question of fact remains as to whether the statute of limitations was stayed until the expiration of the Tolling Agreement or if it was extinguished altogether, or (3) as a second alternative, the Tolling Agreement is ambiguous requiring factual inquiry to determine its meaning.
An action to recover damages arising from an attorney's malpractice must be commenced within three years from accrual (CPLR 214 [6]; Shumsky Eisenstein, 96 NY2d 164, 166 [2001]; Duane Morris LLP v Astor Holdings Inc., 61 AD3d 418, 420 [1st Dept 2009]). Here, CMI's action against BI & R accrued on December 3, 2002. The statute of limitations ran for a total of 19 months, and on July 1, 2004, CMI and BI & R executed the Tolling Agreement, whereby the statute of limitations applicable to any claims between CMI and BI & R were stayed until July 1, 2005, the date of the termination of the Tolling Agreement. At the expiration of the Tolling Agreement, CMI had 17 months in which to commence an action prior to the expiration of the statute of limitations. In order for the pleading to be timely, CMI was required to bring an action by December 2006. However, this action was not brought until 2008. CMI waited to commence this action almost two years after the expiration of the statute of limitations. Thus, CMI's action is time-barred (McCoy v Feinman, 99 NY2d 295, 301 [2002]).
CMI further asserts that the language in the Tolling Agreement is ambiguous and therefore dismissal is unwarranted because it presents a question of fact as to its meaning. Specifically, CMI argues that the Tolling Agreement "abated" the statute of limitations, meaning that the statute of limitations was thus extinguished, and began to run anew at the expiration of the Tolling Agreement on July 1, 2005. CMI contends that the Tolling Agreement is certainly susceptible to a reasonable interpretation that differs from the one that BI & R advances.
"Whether a contract is ambiguous is a question of law, and extrinsic evidence may not be considered unless the document itself is ambiguous" (Bailey v Fish & Neave, 8 NY3d 523, 528 [2007]. The fundamental rule of contract interpretation is that agreements are construed in accord with the parties' intent, and the best evidence of what parties to a written agreement intend is what they say in their writing (see Riverside S. Planning Corp. v CRP/Extell Riverside, L.P., 60 AD3d 61, 66 [1st Dept 2008]). Moreover, such agreements should be read as a whole to ensure that undue emphasis is not placed upon particular words and phrases (Bailey, 8 NY3d at 528).
A contract is not ambiguous if on its face it is reasonably susceptible of only one meaning (Riverside S. Planning Corp., 60 AD3d at 66 [internal quotations omitted]). Conversely, a contract is ambiguous if the provisions in controversy are reasonably or fairly susceptible of different meanings or may have two or more different meanings (id.). The existence of ambiguity is determined by examining the entire contract and considering the relation of the parties and the circumstances under which it was executed, with the wording to be considered in the light of the obligation as a whole and the intention of the parties as manifested thereby (id. at 66-67 [internal quotations omitted]). [*4]
Here, the intention of the parties may be gathered from the four corners of the instrument and should be enforced according to its terms (see Savoy Mgt. Corp. v Leviev Fulton Club, LLC, 51 AD3d 520, 521 [1st Dept 2008]). The relevant provisions of the Tolling Agreement do not support CMI's contention that the execution of said document abated the statute of limitations; it reveals the parties' intention to suspend the running of the statute. They provide in part:
"WHEREAS, as an inducement to presently forbear from filing the Potential Claims, the parties to this Agreement agree to extend and toll, during the effective term of this agreement, all statutes of limitations or other time-bars applicable to the Potential Claims"
(Exhibit 3 to Affidavit of Sue C. Friedberg, Esq. dated December 22, 2008) (Friedberg Aff.).They further provide that "the parties to this agreement wish to postpone the prosecution and/or defense of, or avoid the inconvenience, expense, and distraction of prosecuting and/or defending, the Potential Claims at this time, while fully preserving to themselves the right to file the Potential Claims at a future date" (id.). As articulated in the Recitals section of the Tolling Agreement, CMI and BI & R executed the agreement due to the burdens each corporation faced as a result of being a party to two lawsuits in the Commonwealth of Puerto Rico (id.). Defending said lawsuits required not only a large expenditure of financial capital for both corporations, it exhausted each firm's human capital, thereby encouraging both parties to temporarily suspend the running of the statute to await the outcome of said litigation (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss).
CMI seeks to define abate in paragraph 4 of the Tolling Agreement as the parties' intention to nullify the period of the statute of limitations and for it to run anew at the expiration of the parties' agreement. Paragraph 4 provides, "As of the Effective Date of this agreement, any and all statutes of limitation or other time-bar defenses which may apply to the Potential Claims are hereby tolled, suspended, and abated until the termination of this agreement as defined Paragraph 5 below" (Exhibit 3 to Friedberg Aff.). CMI acknowledges that a search of New York case law did not reveal a published decision in which the use of the word "abate" arose in the context of a tolling agreement. However, it does rely on the analysis of abate in Nastasi v Nastasi , 26 AD3d 32, 39-40 (2d Dept 2005) to bolster its argument. CMI's reliance on Nastasi is misplaced. There, the issue was whether a stay, pending arbitration of an action in which a notice of pendancy had been filed, mandated cancellation of the notice on the ground that the action had abated pursuant to CPLR 6514 (a). CPLR 6514 (a) mandates cancellation of a notice of pendancy if the action has been "settled, discontinued or abated." This lawsuit does not involve a notice of pendancy under CPLR 6514 (a), and thus there is no such mandate. Nor does this case involve a defense by CMI asserting that the action is dead under the common law, whereby the abatement of an action is the entire overthrow or destruction of the action, which results when the defendant pleads a matter that defeats the action, either for the time being or permanently (Natasi, 26 AD3d 32, 40). An action which has abated is dead, and any further enforcement of the cause of action requires the bringing of a new action, provided that a cause of action remains (id.).
The Court of Appeals has held that while courts have discretion to waive other time limits for good cause (see CPLR 2004), the Legislature has specifically enjoined that " no court shall extend the time limited by law for the commencement of an action" (CPLR 201) (McCoy v Feinman, 99 NY2d 295 at 300). As discussed above, an action to recover damages arising from [*5]an attorney's malpractice must be commenced within three years from accrual (CPLR 214 [6]). A legal malpractice claim accrues " when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court'" (McCoy v Feinman, 99 NY2d 295 at 301). In most cases, this accrual time is measured from the day an actionable injury occurs, " even if the aggrieved party is then ignorant of the wrong or injury'" (id.).
The Court of Appeals recognizes no exception to measuring the accrual date from the date of injury caused by an attorney's malpractice (id.). Accordingly, the use of the word "abate" in conjunction with "tolled," and "suspended" in the disputed provision does not establish that the statute of limitations was extinguished, and the date of accrual was changed. Instead, it establishes that the running of the statute was suspended or deferred as stipulated by the parties. Attributing CMI's meaning to the word abate is inconsistent with the holdings of the Court of Appeals and it is inconsistent with the language found in the Tolling Agreement. Despite CMI's best arguments, contractual language does not become ambiguous simply because the parties to the litigation argue different interpretations (Riverside S. Planning Corp., 60 AD3d at 67) .
CMI's argument that the continuous representation doctrine further tolled this action is without merit. The continuous representation doctrine tolls the statute of limitations only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim (McCoy v Feinman, 99 NY2d at 306). Here, the malpractice claims involved BI & R's failure to ascertain that there were no other possible assignees to the leases held in the Trust. There is no evidence in the complaint or supporting materials that any further representation was contemplated by the parties beyond the closing of the Trust. Although, CMI avers that they received invoices from BI & R after the closing of the Trust, there are no allegations that BI & R provided any other legal counsel or representation beyond December 3, 2002. Applying the foregoing principles, and accepting the facts alleged by CMI as true on this motion to dismiss, in the case at bar, the continuous representation doctrine is not available to toll the statute of limitations.
Accordingly, it is
ORDERED that defendant's motion to dismiss is granted and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk of the Court; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
Dated:ENTER:

Hon. Walter B. Tolub, J.S.C.

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