Friday, April 20, 2018

Not Continuous Enough

Too late to sue for legal malpractice, according to this decision of the New York Appellate Division for the First Judicial Department

Defendant established its entitlement to dismissal on statute of limitation grounds by submitting evidence that the malpractice occurred in 2008, but plaintiff did not commence this action until March 2016, well beyond the three-year limitation period for legal malpractice (CPLR 214[6]; see McCoy v Feinman, 99 NY2d 295, 301 [2002]; Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994]; Glamm v Allen, 57 NY2d 87, 93 [1982]). Even accepting plaintiffs' continuous-representation argument, there is no evidence that such continued representation went beyond, at most, July 16, 2012, which still renders plaintiffs' action untimely. Plaintiffs' argument that the limitation period was tolled by the decedent's alleged dementia is also unavailing, as there is no evidence that the decedent suffered from such disability at the time the claim accrued (CPLR 208), or that it rendered her "unable to protect [her] legal rights because of an over-all inability to function in society" (McCarthy v Volkswagen of Am., 55 NY2d 543, 548 [1982]; see Burgos v City of New York, 294 AD2d 177 [1st Dept 2002]).

(Mike Frisch)

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