7897-7898-7898A-7898B-7899. DEBEVOISE & PLIMPTON LLP, plf-res, v. CANDLEWOOD TIMBER GROUP LLC def-ap — DEBEVOISE & PLIMPTON LLP, plf-ap, v. CANDLEWOOD TIMBER GROUP LLC def-res — Clark, Gagliardi & Miller, PC, White Plains (Henry G. Miller of counsel), for Candlewood Timber Group LLC, appellant/res — Hoffman & Pollok LLP, New York (Thomas C. Moore of counsel), for Jeffrey M. Kossak, appellant/res — Roger J. Bernstein, New York, for Debevoise & Plimpton LLP, respondent/ ap — Order, Supreme Court, New York County (Joan M. Kenney, J.), entered May 25, 2011, which, to the extent appealed from, granted plaintiff’s motion for summary judgment dismissing defendants’ legal malpractice counterclaim, and denied defendants’ cross motion for summary judgment dismissing plaintiff’s statute of limitations defense, unanimously affirmed, without costs. Orders, same court and Justice, entered November 16, 2011, which, insofar as appealed from as limited by the briefs, denied defendants’ motion to compel plaintiff to produce nonparty Dietmar Prager for a deposition and nonparties Donald Donovan, Catherine Amirfar, and Dennis Hranitzky for additional depositions, denied defendants’ third motion to compel discovery, and granted plaintiff’s motion to strike defendants’ fourth set of interrogatories and fifth notice for production of documents, unanimously affirmed, without costs. Order, same court and Justice, entered November 16, 2011, which denied defendants’ motion to vacate plaintiff’s note of issue and strike its certificate of readiness, unanimously modified, on the facts and in the exercise of discretion, to permit defendants to file a late jury demand pursuant to CPLR 4102(e), and otherwise affirmed, without costs. Order, same court and Justice, entered November 17, 2011, which denied plaintiff’s second summary judgment motion, unanimously affirmed, without costs.
The court properly found that defendants’ legal malpractice counterclaim was time-barred to the extent defendants seek monetary damages (see CPLR 214[6]). The most recent allegation of negligence occurred in May 2006 — more than three years before this action was commenced in November 2009 — and defendants failed to show that the continuous representation doctrine applies. “There were no clear indicia of an ongoing, continuous, developing and dependent relationship between the client and the attorney” (Matter of Merker, 18 AD3d 332, 332-333 [1st Dept 2005] [internal quotation marks omitted]), nor was there “a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (McCoy v. Feinman, 99 NY2d 295, 306 [2002]). Defendants did not submit affidavits showing “that facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212[f]). As both sides agree, defendants’ malpractice counterclaim is not time-barred insofar as defendants seek to set off their malpractice damages against any recovery plaintiff might obtain (see CPLR 203[d]).
