Monday, June 16, 2008

Continuous Representation Doctrine Not Applied

The New York Appellate Division for the Second Judicial Department ordered that summary judgment be granted to a defendant law firm on statute of limitations grounds. The representation involved the interests of a tenant in connection with the sale of property that included stables for horses. The court concluded that the firm's representation of the client in unrelated matters did not justify invocation of the "continuous representation" doctrine:

Under the doctrine of "continuous representation," the three-year statute of limitations for legal malpractice is tolled while the attorney continues to represent the client in the same matter, after the alleged malpractice is committed (see Shumsky v Eisenstein, 96 NY2d at 168). The parties must have a "mutual understanding" that further representation is needed with respect to the matter underlying the malpractice claim (McCoy v Feinman, 99 NY2d at 306).

Here, the defendant established its prima facie entitlement to summary judgment dismissing the legal malpractice cause of action by demonstrating that the statute of limitations expired on October 10, 1999 (see CPLR 214[6]). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the statute of limitations was tolled by the continuous representation doctrine (cf. Shumsky v Eisenstein, 96 NY2d at 168). The defendant's subsequent representation of the plaintiffs in matters unrelated to the specific matter that gave rise to the alleged malpractice was insufficient to toll the statute of limitations (see Rachlin v LaRossa, Mitchell & Ross, 8 AD3d 461; Dignelli v Berman, 293 AD2d 565). Consequently, the Supreme Court should have granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging legal malpractice as time-barred.

(Mike Frisch)

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