Ryan v. Borg , 88 A.D.2d 637 ( 1982 )

— In a legal malpractice action, defendant appeals from an order of the Supreme Court, Queens County (Durante, J.), dated October 24,1979, which denied his motion to dismiss the complaint, pursuant to CPLR 3211 (subd [a], par 5), on the ground that the action cannot be maintained because of the expiration of the Statute of Limitations prior to commencement of the action. Order reversed, without costs or disbursements, the defendant’s motion is to be treated as a motion for summary judgment pursuant to CPLR 3211 (subd [c]), and the matter is remitted to Special Term for a hearing consistent herewith. The date when the attorney-client relationship terminated, and hence, whether the action is time barred, cannot be established from the conflicting evidence in the record. Pursuant to CPLR 3211 (subd [c]) there should be an immediate trial to resolve this issue. Mollen, P. J., Mangano, Brown and Rubin, JJ., concur.