In Fraumeni v Law Firm of Jonathan D’Agostino, P.C., 215 AD3d 803 [2d Dept 2023], the court held that the statute of limitations began to run when the client demanded and received her file from the lawyer’s office, holding:
The statute of limitations for a cause of action alleging legal malpractice, and a cause of action alleging a violation of Judiciary Law § 487 arising out of the same transactions as the legal malpractice cause of action, is three years (see CPLR 214[6]; Farage v. Ehrenberg, 124 A.D.3d 159, 996 N.Y.S.2d 646). “ ‘However, causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies’ ” (Keshner v. Hein Waters & Klein, 185 A.D.3d 808, 808, 125 N.Y.S.3d 582, quoting Farage v. Ehrenberg, 124 A.D.3d at 164, 996 N.Y.S.2d 646 [alterations and internal quotation marks omitted]). “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 Joseph v. Fensterman, 204 A.D.3d at 770, 167 N.Y.S.3d 106). “The essence of a continuous representation toll is the client’s confidence in the attorney’s ability and good faith, such that the client cannot be expected to question and assess the techniques employed or the manner in which the services are rendered” (Farage v. Ehrenberg, 124 A.D.3d at 167, 996 N.Y.S.2d 646). Therefore, “[o]ne of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties” (id. [internal quotation marks omitted]). “ ‘What constitutes a loss of client confidence is fact specific, varying from case to case, but may be demonstrated by relevant documentary evidence involving the parties, or by the client’s actions’ ” (Tantleff v. Kestenbaum & Mark, 131 A.D.3d 955, 957, 15 N.Y.S.3d 840, quoting Farage v. Ehrenberg, 124 A.D.3d at 168, 996 N.Y.S.2d 646).
Here, the defendants established, prima facie, that the plaintiff’s legal malpractice and Judiciary Law § 487 causes of action were time-barred, as they accrued when the underlying actions were commenced in 2013 and 2015 (see Sclafani v. Kahn, 169 A.D.3d 846, 849, 94 N.Y.S.3d 118; Farage v. Ehrenberg, 124 A.D.3d at 167–168, 996 N.Y.S.2d 646). In opposition to the defendants’ prima facie showing, the plaintiff failed to raise a question of fact as to whether the continuous representation doctrine tolled the applicable statute of limitations. Contrary to the plaintiff’s contention, the record supports the Supreme Court’s determination that the relationship necessary to invoke the continuous representation doctrine ceased to exist on May 4, 2016, when the plaintiff demanded and received her file from the defendants’ office, thereby indicating her lack of trust and confidence in the parties’ relationship and her intention to discharge the defendants as her attorneys (see Aseel v. Jonathan E Kroll & Assoc., PLLC, 106 A.D.3d at 1038, 966 N.Y.S.2d 202). Moreover, numerous documented communications between the parties submitted by the plaintiff in opposition demonstrated that she lost all trust and confidence in the defendants, such that the attorney-client relationship ceased more than three years before the plaintiff commenced this action (see Sclafani v. Kahn, 169 A.D.3d at 849, 94 N.Y.S.3d 118; Farage v. Ehrenberg, 124 A.D.3d at 160–161, 996 N.Y.S.2d 646).
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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