Legal malpractice context…continuous representation doctrine…generally limited to…a specific legal matter…

In Goodman v Weiss, Zarett, Brofman, Sonnenklar & Levy, P.C., 199 AD3d 659, 661-62 [2d Dept 2021], court affirmed the dismissal the client’s malpractice action as time-barred, holding:

The plaintiff contends that the defendant’s malpractice consisted of improperly negotiating his separation from his previous employer and his new employment contract with the hospitals. However, an action alleging legal malpractice must be commenced within three years from the date of accrual (see CPLR 214 [6]). A claim accrues when the malpractice is committed, not when the client discovers it (see Shumsky v Eisenstein, 96 NY2d 164, 166 [2001]). “Causes of action alleging legal malpractice which would otherwise be time-barred are timely if the doctrine of continuous representation applies” (DeStaso v Condon Resnick, LLP, 90 AD3d 809, 812 [2011]). “In the legal malpractice context, 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” (id. at 812). Application of the continuous representation doctrine is generally “limited to the course of representation concerning a specific legal matter . . . ; [t]he concern, of course, is whether there has been continuous [representation], and not merely a continuing relation” between the client and the lawyer (Shumsky v Eisenstein, 96 NY2d at 168 [internal quotation marks omitted]).

Contrary to the plaintiff’s contention, the legal malpractice cause of action at issue was time-barred under CPLR 214 (6), and the continuous representation doctrine did not toll the statute of limitations. That doctrine “tolls the running of the statute of limitations on a cause of action against a professional defendant only so long as the defendant continues to represent the plaintiff[s] in connection with the particular transaction which is the subject of the action and not merely during the continuation of a general professional relationship” (Maurice W. Pomfrey & Assoc., Ltd. v Hancock & Estabrook, LLP, 50 AD3d 1531, 1533 [2008] [internal quotation marks omitted]). Although the plaintiff alleges that the defendant continued to provide legal services to him between January 2011 and November 2013, he did not seek or obtain the defendant’s legal services at any time during that period and, when the plaintiff did subsequently engage the defendant’s legal services, that engagement was with regard to the performance of distinct services related to a different subject matter. Accordingly, the Supreme Court properly determined that the continuous representation toll was inapplicable and granted that branch of the defendant’s motion which was to dismiss the legal malpractice cause of action as time-barred.


Richard A. Klass, Esq.
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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.

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