Reminder to Attorneys: explicitly confirm when representation of the client has terminated.

Schwenger v Weitz, Kleinick & Weitz, LLP, 192 AD3d 606, 607 [1st Dept 2021] serves as a good reminder to attorneys to confirm that representation of the client has terminated in explicit terms:

Where, as here, defendants were retained in writing to represent plaintiff in all proceedings before the Workers’ Compensation Board related to his claim, plaintiff made a sufficient showing of a continuing relationship with regard to that proceeding to support his contention of continuous representation (Shumsky v. Eisenstein, 96 N.Y.2d 164, 168, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001]). Defendants’ statement in an email that they would not pursue an appeal to the Third Department after having lost before the Workers’ Compensation appellate panel on the issue of whether plaintiff was an employee, did not “unequivocally” terminate the representation in the workers’ compensation matter, which remained pending following the administrative review (Riley v. Segan, Nemerov & Singer, P.C., 82 A.D.3d 572, 572, 918 N.Y.S.2d 488 [1st Dept. 2011]).


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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

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Scales of justice

Continuous Representation Doctrine

Lavelle-Tomko v Aswad & Ingraham, 191 AD3d 1142 [3d Dept 2021] discusses the continuous representation doctrine, holding:

“An action to recover damages arising from legal malpractice must be commenced within three years after accrual” (Zorn v. Gilbert, 8 N.Y.3d 933, 933–934, 834 N.Y.S.2d 702, 866 N.E.2d 1030 [2007] [citation omitted]; see CPLR 214[6]), which occurs at the time of the injury and not at the time that the injury is discovered (see McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002]). In seeking to obtain dismissal of the action based on the statute of limitations, defendants bore the initial burden of demonstrating that the time within which to commence had expired, including establishing the date that the cause of action accrued (see Matter of Steinberg, 183 A.D.3d 1067, 1070, 124 N.Y.S.3d 98 [2020]; Haynes v. Williams, 162 A.D.3d 1377, 1378, 79 N.Y.S.3d 365 [2018], lv denied 32 N.Y.3d 906, 2018 WL 4997517 [2018]; Krog Corp. v. Vanner Group, Inc., 158 A.D.3d 914, 915, 72 N.Y.S.3d 178 [2018]). If defendants met that initial burden, “the burden then shift[ed] to … plaintiff to raise a question of fact as to whether the statute of limitations has been tolled or was otherwise inapplicable” (Krog Corp. v. Vanner Group, Inc., 158 A.D.3d at 916, 72 N.Y.S.3d 178 [internal quotation marks and citations omitted]; see International Electron Devices [USA] LLC v. Menter, Rudin & Trivelpiece, P.C., 71 A.D.3d 1512, 1512, 898 N.Y.S.2d 388 [2010]).

Defendants demonstrated, and plaintiff does not dispute, that her cause of action accrued on August 19, 2007, the date that she executed the settlement agreement in the first action. Plaintiff commenced this action on October 25, 2016, more than nine years after accrual and well beyond the three-year statute of limitations (see CPLR 214[6]). Defendants thus met their initial burden on their motion for summary judgment based on that defense (see Haynes v. Williams, 162 A.D.3d at 1378, 79 N.Y.S.3d 365). The burden then shifted to plaintiff to demonstrate that the statute of limitations was tolled or otherwise inapplicable, or at least that there is a question of fact to prevent summary judgment to defendants on that issue. Similarly, on the portion of plaintiff’s cross motion seeking dismissal of defendants’ statute of limitations defense, plaintiff had to prove as a matter of law that her action is not time-barred (see Red Zone LLC v. Cadwalader, Wickersham & Taft LLP, 27 N.Y.3d 1048, 1049–1050, 34 N.Y.S.3d 397, 54 N.E.3d 69 [2016]).

To meet her burden, plaintiff primarily relies on the continuous representation doctrine. “This doctrine applies where there is continuing trust and confidence *114 in the relationship between the parties and the attorney’s continuing representation pertains to the specific matter in which the attorney committed the alleged malpractice, not merely the continuity of a general professional relationship” (Deep v. Boies, 53 A.D.3d 948, 950, 863 N.Y.S.2d 269 [2008] [internal quotation marks and citations omitted]; see McCoy v. Feinman, 99 N.Y.2d at 306, 755 N.Y.S.2d 693, 785 N.E.2d 714; Shumsky v. Eisenstein, 96 N.Y.2d 164, 168, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001]; Deep v. Boies, 121 A.D.3d 1316, 1318, 995 N.Y.S.2d 298 [2014], lv denied 25 N.Y.3d 903, 2015 WL 1526052 [2015]). “The continuous representation doctrine tolls the statute of limitations where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (Zorn v. Gilbert, 8 N.Y.3d at 934, 834 N.Y.S.2d 702, 866 N.E.2d 1030 [internal quotation marks, ellipsis and citations omitted]). “For the continuous representation doctrine to apply to an action sounding in legal malpractice, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney, which often includes an attempt by the attorney to rectify an alleged act of malpractice” (International Electron Devices [USA] LLC v. Menter, Rudin & Trivelpiece, P.C., 71 A.D.3d at 1512–1513, 898 N.Y.S.2d 388 [internal quotation marks, ellipsis, brackets and citations omitted]; see Leeder v. Antonucci, 174 A.D.3d 1469, 1471, 106 N.Y.S.3d 490 [2019]; see also Matter of Lawrence, 24 N.Y.3d 320, 342–343, 998 N.Y.S.2d 698, 23 N.E.3d 965 [2014]; Creative Rest., Inc. v. Dyckman Plumbing & Heating, Inc., 184 A.D.3d 803, 805, 126 N.Y.S.3d 498 [2020]).

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Scales of justice

Continuous representation doctrine toll only applies to the particular matter.

In Pace v Horowitz, 190 AD3d 619 [1st Dept 2021], the court held that the continuous representation doctrine toll only applies to the particular matter, not general representation. The court held:

The court correctly determined that plaintiffs failed to show that there is an issue of fact as to whether the legal malpractice claim was timely filed based on the application of the continuous representation doctrine toll (see Marzario v Snitow Kanfer Holzer & Millus, LLP, 178 AD3d 527, 528 [1st Dept 2019]). The continuous representation doctrine toll does not apply based merely on the existence of an ongoing professional relationship, but only where the particular course of representation giving rise to the particular problems resulting in the alleged malpractice is ongoing (see Matter of Lawrence, 24 NY3d 320, 341 [2014]; Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1 [2007]). Here, while plaintiffs allege that defendant law firm provided continuing estate administration work as part of an ongoing professional relationship of estate administration, they do not adequately allege that the particular course of representation regarding the sale of estate assets in 2007, which gave rise to the malpractice allegations, continued through February 2015, so as to make the instant malpractice claim timely filed.

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Scales of justice

Statute of limitations and doctrine of continuous representation.

In Keshner v Hein Waters & Klein, 185 AD3d 808, 808-09 [2d Dept 2020], the court considered whether, on a motion to dismiss, the client was able to prove that there was a toll on the statute of limitations for legal malpractice based upon continuous representation, holding:

The statute of limitations for a cause of action alleging legal malpractice is three years (see CPLR 214 [6]). “However, ‘[c]auses of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies’ ” (Farage v Ehrenberg, 124 AD3d 159, 164 [2014], quoting *809 Macaluso v Del Col, 95 AD3d 959, 960 [2012]; see Glamm v Allen, 57 NY2d 87, 94 [1982]). “[T]he rule of continuous representation tolls the running of the Statute of Limitations on the malpractice claim until the ongoing representation is completed” (Glamm v Allen, 57 NY2d at 94; see Farage v Ehrenberg, 124 AD3d at 164). “The two prerequisites for continuous representation tolling are a claim of misconduct concerning the manner in which professional services were performed, and the ongoing provision of professional services with respect to the contested matter or transaction” (Matter of Lawrence, 24 NY3d 320, 341 [2014]; see Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 9, 11 [2007]; McCoy v Feinman, 99 NY2d 295, 306 [2002]).

Here, the defendants met their initial burden of establishing, prima facie, that the legal malpractice cause of action was untimely (see CPLR 214 [6]). In opposition, however, the plaintiff raised a question of fact as to whether the statute of limitations was tolled by the doctrine of continuous representation (see Kitty Jie Yuan v 2368 W. 12th St., LLC, 119 AD3d 674, 674 [2014]; Macaluso v Del Col, 95 AD3d at 960; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017-1018 [2010]).

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Scales of justice

If there has been a demonstration that the attorney-client relationship in a matter ceased…

While the continuous representation doctrine can toll a time-barred cause of action for legal malpractice, if there has been a demonstration that the attorney-client relationship in a matter ceased, the time within which to bring such action will accrue then, as held in Sclafani v Kahn, 169 AD3d 846 [2d Dept 2019]:

An action to recover damages for legal malpractice must be commenced within three years of accrual, “ regardless of whether the underlying theory is based in contract or tort ” (CPLR 214[6]; see McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714; Chase Scientific Research v. NIA Group, 96 N.Y.2d 20, 725 N.Y.S.2d 592, 749 N.E.2d 161; Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d at 1086, 30 N.Y.S.3d 288; Alizio v. Ruskin Moscou Faltischek, P.C., 126 A.D.3d at 735, 5 N.Y.S.3d 252; Farage v. Ehrenberg, 124 A.D.3d 159, 163, 996 N.Y.S.2d 646; Landow v. Snow Becker Krauss, P.C., 111 A.D.3d at 796, 975 N.Y.S.2d 119). “ A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered ” (Alizio v. Ruskin Moscou Faltischek, P.C., 126 A.D.3d at 735, 5 N.Y.S.3d 252; see McCoy v. Feinman, 99 N.Y.2d at 301, 755 N.Y.S.2d 693, 785 N.E.2d 714; Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d at 1086, 30 N.Y.S.3d 288; Farage v. Ehrenberg, 124 A.D.3d at 164, 996 N.Y.S.2d 646; Landow v. Snow Becker Krauss, P.C., 111 A.D.3d at 796, 975 N.Y.S.2d 119).

However, “ [t]he continuous representation doctrine serves to toll the statute of limitations and render timely an otherwise time-barred cause of action for legal malpractice, but ‘ only where there is a mutual understanding of the need for further representation on the specific subject *121 matter underlying the malpractice claim ’ ” (King Tower Realty Corp. v. G & G Funding Corp., 163 A.D.3d 541, 543, 79 N.Y.S.3d 289, quoting McCoy v. Feinman, 99 N.Y.2d at 306, 755 N.Y.S.2d 693, 785 N.E.2d 714; see Alizio v. Ruskin Moscou Faltischek, P.C., 126 A.D.3d at 735, 5 N.Y.S.3d 252). For the doctrine to apply, “ there must be clear indicia of ‘ an ongoing, continuous, developing, and dependent relationship between the client and the attorney ’ ” (Farage v. Ehrenberg, 124 A.D.3d at 164, 996 N.Y.S.2d 646, quoting Aseel v. Jonathan E. Kroll & Assoc., PLLC, 106 A.D.3d 1037, 1038, 966 N.Y.S.2d 202; see Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d at 1086, 30 N.Y.S.3d 288).

Here, the defendants established that the plaintiffs’ legal malpractice cause of action was time-barred, as it accrued on June 24, 2009, at the conclusion of the closing (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385). In opposition to the defendants’ respective motions, the plaintiffs failed to raise a question of fact as to whether the continuous representation doctrine tolled the applicable statute of limitations. Indeed, the communications between the parties upon which the plaintiffs rely, which occurred after the statute of limitations had run, demonstrated that the attorney-client relationship in this matter had ceased at the conclusion of the closing, and was not continued.

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…Applicable to the particular matter in which malpractice is claimed

The statute of limitations in legal malpractice cases can be tolled when there has been continuous representation of the client by the attorney. However, it is applicable only to the particular matter in which malpractice is claimed.

See, Davis v Cohen & Gresser, LLP, 160 AD3d 484, 486 [1st Dept 2018], in which the court held:

“ the continuous representation doctrine does not apply where there is only a vague “ ongoing representation ” (Johnson v. Proskauer Rose LLP, 129 A.D.3d 59, 68, 9 N.Y.S.3d 201 [1st Dept. 2015] ). For the doctrine to apply, the representation must be specifically related to the subject matter underlying the malpractice claim, and there must be a mutual understanding of need for further services in connection with that same subject matter (see Shumsky, 96 N.Y.2d at 168, 726 N.Y.S.2d 365, 750 N.E.2d 67; see also CLP Leasing, 12 A.D.3d at 227, 784 N.Y.S.2d 535). ”

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Issue of fact concerning the continuous representation doctrine

…issue of fact concerning the continuous representation doctrine…

In an action brought by a client against his law firm, the appellate court reversed the granting of the law firm’s motion for summary judgment based upon an issue of fact concerning the continuous representation doctrine.

Under the continuous representation doctrine, a person seeking professional assistance is placed in a difficult position if required to sue his or her attorney while the attorney continues to represent them on a particular legal matter (Shumsky v. Eisenstein, 96 N.Y.2d 164, 167–168, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001] ). Accordingly, the doctrine tolls the running of the statute of limitations on malpractice claims until the ongoing representation is completed (id.). However, the application of this doctrine is limited “to the course of representation concerning a specific legal matter,” and is not applicable to the client’s “continuing general relationship with a lawyer … involving only routine contact for miscellaneous legal representation … unrelated to the matter upon which the allegations of malpractice are predicated” (id. at 168, 726 N.Y.S.2d 365, 750 N.E.2d 67). The record presents an issue of fact as to whether defendant continuously represented plaintiff in connection with a personal injury claim based on the accident, such as to toll the statute of limitations during that time (see Glamm v. Allen, 57 N.Y.2d 87, 94, 453 N.Y.S.2d 674, 439 N.E.2d 390 [1982]; Waggoner v. Caruso, 68 A.D.3d 1, 6–7, 886 N.Y.S.2d 368 [1st Dept. 2009] ). Encalada v McCarthy, Chachanover & Rosado, LLP, 160 AD3d 475 [1st Dept 2018].

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Issue: whether an attorney “continuously represented” his client.

The issue as to whether an attorney “continuously represented” his client in such a manner as to extend the statute of limitations to bring an action for legal malpractice created an issue of fact, as determined by the First Department in Cordero v. Koval, Retjig & Dean PLLC.

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~ ~ ~

Rolando Cordero, Respondent,

v

Koval Retjig & Dean PLLC et al., Appellants.

Supreme Court, Appellate Division, First Department, New York

113450/11, 3740

June 20, 2017

Rivkin Radler LLP, New York (Jonathan B. Bruno of counsel), for appellants.

Law Office of Steven C. Pepperman, New York (Steven C. Pepperman of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered March 21, 2016, which denied defendants’ motion for summary judgment dismissing the complaint alleging legal malpractice, unanimously affirmed, without costs.

The claim for malpractice accrued when defendants failed to timely file a notice of claim (see General Municipal Law § 50-e) upon the City of New York and the New York City Department of Transportation after plaintiff was allegedly injured in a fall from his motorcycle because he struck a defectively-placed construction plate in the road (see generally Glamm v Allen, 57 NY2d 87, 93 [1982]). However, the evidence raised triable issues whether the malpractice statute of limitations (CPLR 214 [6]) was tolled under the continuous representation doctrine. Mark Koval, an attorney formerly employed by defendant law firm, joined another law firm at or about the time plaintiff’s personal injury case was transferred to such new law firm. Defendants admit that plaintiff’s case was transferred to the new firm, and Koval does not deny having worked on the case at either the old or new firm (see generally Antoniu v Ahearn, 134 AD2d 151 [1st Dept 1987]; HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP, 63 AD3d 534, 535 [1st Dept 2009]). Although Koval claims he subsequently left the new firm and did not take plaintiff’s case with him, there is no evidence that plaintiff was ever informed of, or had *2 objective notice of, Koval’s departure such as to end the continuous representation circumstance and the tolling of the statute of limitations (see Shumsky v Eisenstein, 96 NY2d 164, 167-169, 170 [2001]). Concur—Sweeny, J.P., Richter, Andrias, Webber and Gesmer, JJ.

Copr. (C) 2017, Secretary of State, State of New York

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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 [2001].
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 [1991], 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].

— by Richard A. Klass, Esq.

———–
copyr. 2014 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.comcreate new email with any questions.
Prior results do not guarantee a similar outcome.


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Klass in the News: Malpractice Rulings Extend NYC Lawyers’ Ties To Old Clients

By Pete Brush
Law360, New York
September 11, 2014, 8:22 PM ET

New York City trial court and appellate rulings extending the clock on professional negligence claims against law firms that no longer directly represent those clients could boost malpractice risk and leave attorneys with tough choices over communicating on past matters, experts say….

…The current lay of the land in New York City, where the First Department holds sway, means lawyers must take careful approaches when considering how they might communicate with clients — especially unhappy clients — after the work at hand is done, according to Brooklyn-based attorney Richard A. Klass, who represents malpractice plaintiffs and defendants.

Transactional lawyers, for example, might want to foreclose advice on litigation or appeals at the outset, according to Klass, and they also may want to make it clear that no more advice will be forthcoming at the completion of an engagement in order to shield themselves.

“They should beef up both their hello letters and their goodbye letters,” Klass said.

To read the entire article, click here.


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