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Richard A. Klass
By Richard Klass, Esq.
The term “statute of limitations” refers to the period of time in which a plaintiff may bring a lawsuit against a defendant for a claim. Different types of cases are governed by different statute of limitations period (for instance, six years for contract actions in New York, three years for tort actions in New York). The effect of the statute of limitations is that a plaintiff bringing a lawsuit after that period of time has expired is barred from bringing it, and the lawsuit will be dismissed as untimely.
In New York, the statute of limitations for legal malpractice cases is three years from the date of malpractice. This means that a plaintiff-client bringing a lawsuit for legal malpractice against a defendant-attorney must file the lawsuit within three years of the date of legal malpractice by the defendant-attorney; if not, then the lawsuit may be dismissed as untimely. There are some “tolls” of the statute of limitations, which may extend the period of time in which a lawsuit may be filed (e.g. continued representation of the client by the attorney post-malpractice).
In a case decided by New York’s Appellate Division, Second Department, Frost Line Refrigeration, Inc. v. Gastwirth, Mirsky & Stein LLP, 806 NYS2d 436 (2006), the court held that the three-year statute of limitations period for the legal malpractice case started running from the date that the plaintiff-client signed a Consent to Change Attorney form with the defendant-client. By signing that form (which indicates that a client no longer wants the attorney to act as its counsel), the attorney-client relationship terminated and the clock began ticking on the potential legal malpractice claim. As the lawsuit was filed after the three-year period, the plaintiff-client was time-barred from commencing the legal malpractice case and it was dismissed.
Therefore, it is very important to be vigilant in pursuing all potential legal remedies as soon as possible in order to preserve any rights, including the right to file a legal malpractice case; otherwise, it may be too late to file a legal malpractice case.
[Updated, September 2014]
Statute of Limitations for Legal Malpractice Action
CPLR 214(6) provides that “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” must be commenced within 3 years.
The cause of action for malpractice accrues at the time of the act, error or omission. See, Julian v. Carrol, 270 AD2d 457 [2d Dept. 2000]; Goicoechea v. Law Offices of Stephen Kihl, 234 AD2d 507 [2d Dept. 1996]; Shumsky v. Eisenstein, 96 NY2d 164 .
The Court of Appeals has held that a cause of action for legal malpractice accrues against the attorney when the statute of limitations expires on the underlying action for which the attorney was retained. See, Shumsky v. Eisenstein, supra. In Burgess v. Long Island Railroad Authority, 79 NY2d 777 , the Court of Appeals held:
The Continuous Representation Toll of a Legal Malpractice Action
The accrual of the three-year statute of limitations is tolled during the period of the lawyer’s continuous representation in the same matter out of which the malpractice arose under the theory that the client should not be expected to question the lawyer’s advice while he is still representing the client. See, Lamellen v. Kupplungbau GmbH v. Lerner, 166 AD2d 505 [2d Dept. 1990]; Shumsky v. Eisenstein, supra. Under the continuous representation doctrine, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the lawyer. See, Kanter v. Pieri, 11 AD3d 912 [4 Dept. 2004]; Lamellen v. Kupplungbau GmbH v. Lerner, supra; Clark v. Jacobsen, 202 AD2d 466 [2 Dept. 1994].
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