# Gilbert Properties, Inc. v. Millstein

> Appellate Division of the Supreme Court of the State of New York · November 28, 1972 · 40 A.D.2d 100

URL: https://www.frixlaw.com/law-library/cases/9885641

## Case

- **Full name:** Gilbert Properties, Inc., Respondent, v. Jacob A. Millstein, Appellant
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** November 28, 1972
- **Citations:** 40 A.D.2d 100; 338 N.Y.S.2d 370; 1972 N.Y. App. Div. LEXIS 3269
- **Precedential status:** Published
- **Opinion:** Dissent by Nunez
- **Judges:** Stevens
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Nunez, J. (dissenting).
In 1963 plaintiff corporation retained defendant, an attorney at law, tu represent it in an action to recover property damages. The claim was that the negligent demolition of a structure upon land adjoining plaintiff’s property caused the damage. Defendant had served a timely notice of claim against the City of New York and the Board of Education prior to commencement of the action in 1964. At the trial, in December, 1967, the defendants proved that the City of New York had conveyed the property abutting plaintiff’s premises to the New York City Housing Authority op February 15, 1963. However, and most importantly, the City of New York, in its answer, had admitted ownership of the premises that were demolished in 1963. The trial court denied the city’s motion to amend its answer to deny ownership. Judgment in a substantial sum was entered in plaintiff’s favor in August, 1968. This court, in September, 1969, reversed and dismissed the complaint (33 A D 2d 175) and the Court of Appeals affirmed without' opinion (27 N Y 2d 594).
It has now been established that the defendant sued the wrong parties in plaintiff’s action for damages to its property. But *107 this controlling fact — the reversal of the judgment in plaintiff’s favor — did not occur until September, 1969. Up to that time plaintiff had suffered no damage. On the contrary, he had recovered a judgment against a solvent defendant for the full amount of his damages.
As in Siegel v. Kranis (29 A D 2d 477 [2d Dept., 1968]) I would hold that a client’s cause of action against his attorney for malpractice in failing to file a claim timely, does not accrue when the time to file expired, but at a later date when there has been a finding (in Siegel by a jury, in our case by the court) that the filed claim or notice was untimely.
To hold that this plaintiff should have sued Lis former lawyer at any time prior to a finding of untimely filing and, indeed in the face of a recovery for its damages is, to say the least, most unreasonable. It places an undue burden on the lay public and results in unfair advantage to the lawyer. I would affirm the order dismissing the affirmative defense of the three-year Statute of Limitations.
Stevens, P. J., and Murphy, J., concur with Eager, J.; Nunez, J., dissents in opinion.
Order, Supreme Court, New York County, entered on May 17, 1972, reversed, on the law, plaintiff’s motion to strike the affirmative defense of the Statute of Limitations from defendant’s answer denied, and defendant’s cross motion for an order dismissing plaintiff’s complaint as time-barred by the Statute of Limitations granted, and the complaint dismissed. Appellant shall recover of respondent $60 costs and disbursements of this appeal.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9885641. Public record. Not legal advice.