Court held that there were questions of fact regarding the continuous representation toll.

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In Ray-Roseman v Lippes Mathias Wexler Friedman, LLP, 197 AD3d 944 [4th Dept 2021], the court held that there were questions of fact regarding the continuous representation toll of the statute of limitations, holding:

The statute of limitations for a legal malpractice claim is three years (see CPLR 214 [6]; McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002]). Here, plaintiffs correctly concede that defendants met their initial burden of establishing that the malpractice claim insofar as it related to the 2014 loan transaction was commenced beyond the three-year statute of limitations (see generally Rider v. Rainbow Mobile Home Park, LLP, 192 A.D.3d 1561, 1561-1562, 145 N.Y.S.3d 246 [4th Dept. 2021]; U.S. Bank N.A. v. Brown, 186 A.D.3d 1038, 1039, 130 N.Y.S.3d 146 [4th Dept. 2020]). Thus, the burden shifted to plaintiffs to raise a triable issue of fact whether “the statute of limitations was tolled or otherwise inapplicable, or whether … plaintiff[s] actually commenced the action within the applicable limitations period” (U.S. Bank N.A., 186 A.D.3d at 1039, 130 N.Y.S.3d 146 [internal quotation marks omitted]; see generally Rider, 192 A.D.3d at 1562, 145 N.Y.S.3d 246).

We conclude that plaintiffs, in opposition, raised a triable issue of fact whether the continuous representation doctrine applied to toll the statute of limitations with respect to the malpractice claim insofar as it related to the 2014 loan transaction (see generally Carbone v. Brenizer, 148 A.D.3d 1806, 1807, 50 N.Y.S.3d 783 [4th Dept. 2017]). The continuous representation doctrine tolls the limitations period “where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (McCoy, 99 N.Y.2d at 306, 755 N.Y.S.2d 693, 785 N.E.2d 714), and “ ‘where the continuing representation pertains specifically to [that] matter’ ” (International Electron Devices [USA] LLC v. Menter, Rudin & Trivelpiece, P.C., 71 A.D.3d 1512, 1513, 898 N.Y.S.2d 388 [4th Dept. 2010], quoting Shumsky v. Eisenstein, 96 N.Y.2d 164, 168, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001]). Here, plaintiffs submitted communication between the Florida attorney and defendants in which the Florida attorney indicated that defendants’ role as New York counsel included “enforcement” of the 2014 loan transaction documents. Moreover, the 2014 loan transaction and the foreclosure proceedings were close in time, as evidenced by plaintiffs’ submission of defendants’ supplemental billing invoices for legal services, which demonstrated a representation from the loan transaction to the foreclosure proceeding without a break. Thus, we conclude that questions of fact exist regarding the extent of defendants’ representation of plaintiffs and, more specifically, whether “enforcement” of the loan documents contemplated a continued representation until the loan was paid in full and the transaction completed.

 

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.

Prior results do not guarantee a similar outcome.

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Failed to submit evidence establishing, prima facie, the absence of at least one essential element of the legal malpractice cause of action.

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In Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 197 AD3d 544 [2d Dept 2021], the court reinstated the client’s complaint for legal malpractice against its former attorneys, holding:

To succeed on a motion for summary judgment dismissing a legal malpractice action, a defendant must present evidence in admissible form establishing that at least one of the essential elements of legal malpractice cannot be satisfied (see Buczek v. Dell & Little, LLP, 127 A.D.3d 1121, 1123, 7 N.Y.S.3d 558; Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 A.D.3d 955, 956, 958 N.Y.S.2d 604). Those elements require a showing that (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Bells v. Foster, 83 A.D.3d 876, 877, 922 N.Y.S.2d 124; see also Bua v. Purcell & Ingrao, P.C., 99 A.D.3d 843, 845, 952 N.Y.S.2d 592). The causation element requires a showing that the injured party “ ‘would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence’ ” (Bells v. Foster, 83 A.D.3d at 877, 922 N.Y.S.2d 124, quoting Kennedy v. H. Bruce Fischer, Esq., P.C., 78 A.D.3d 1016, 1018, 912 N.Y.S.2d 590). The defendant must affirmatively demonstrate the absence of one of the elements of legal malpractice, rather than merely pointing out gaps in the plaintiff’s proof (see Quantum Corporate Funding, Ltd. v. Ellis, 126 A.D.3d 866, 871, 6 N.Y.S.3d 255).

Here, the judgment must be reversed, as the Supreme Court should have denied Wilentz’s motion for summary judgment dismissing the complaint. Wilentz failed to submit evidence establishing, prima facie, the absence of at least one essential element of the legal malpractice cause of action (see Bells v. Foster, 83 A.D.3d at 877, 922 N.Y.S.2d 124; see also Biberaj v. Acocella, 120 A.D.3d 1285, 1287, 993 N.Y.S.2d 64). Since Wilentz failed to make its prima facie showing, we do not need to consider the sufficiency of Aqua–Trol’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The Supreme Court, however, properly denied Aqua–Trol’s cross motion for summary judgment on the issue of liability. Aqua–Trol did not establish, prima facie, that Wilentz failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession (see Schottland v. Brown Harris Stevens Brooklyn, LLC, 137 A.D.3d 995, 996–997, 27 N.Y.S.3d 259; Bells v. Foster, 83 A.D.3d at 877, 922 N.Y.S.2d 124). Since Aqua–Trol failed to satisfy its prima facie burden, we need not consider the sufficiency of Wilentz’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

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.

Prior results do not guarantee a similar outcome.

© 2021 Richard A. Klass

R. A. Klass
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Court denied dismissal of the client’s legal malpractice claim based on the statute of limitations.

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In Golden Jubilee Realty, LLC v Castro, 196 AD3d 680 [2d Dept 2021], the court denied dismissal of the client’s legal malpractice claim based on the statute of limitations, holding:

“In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable” (Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d 788, 789, 51 N.Y.S.3d 183 [citations omitted]). “An action to recover damages for legal malpractice must be commenced within three years after the accrual of the cause of action” (Bullfrog, LLC v. Nolan, 102 A.D.3d 719, 719–720, 959 N.Y.S.2d 212; see CPLR 214[6]). “A legal malpractice claim accrues ‘when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court’ ” (McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714, quoting Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541, 620 N.Y.S.2d 318, 644 N.E.2d 1009).

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #legalmalpractice #statuteoflimitations

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.

© 2021 Richard A. Klass

R. A. Klass
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An attorney-client relationship may exist even if there’s no written retainer agreement.

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Edelman v Berman, 195 AD3d 995 [2d Dept 2021] serves as a good reminder that, just because there is no written retainer agreement, does not mean that an attorney-client relationship does not possibly exist. The court held:

An attorney-client relationship may arise even in the absence of a written retainer agreement, and a court must look to the words and actions of the parties to determine whether such a relationship exists (see Tropp v. Lumer, 23 A.D.3d 550, 551, 806 N.Y.S.2d 599). Here, according the plaintiff the benefit of every favorable inference, she sufficiently alleged the existence of an attorney-client relationship (see Hall v. Hobbick, 192 A.D.3d 776, 144 N.Y.S.3d 88; see also Tropp v. Lumer, 23 A.D.3d at 551, 806 N.Y.S.2d 599).

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #retainer-agreement

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.

© 2021 Richard A. Klass

R. A. Klass
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Richard A. Klass Selected for the Sixth Time for the New York Metro Super Lawyers List

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Richard A. Klass Selected for the Sixth Time for the New York Metro Super Lawyers List

We are pleased to announce that Richard Klass, has been selected to the 2021 New York Metro Super Lawyers list. This is an exclusive list, recognizing no more than five percent of attorneys in the New York Metro area.

Super Lawyers, part of Thomson Reuters, is a research-driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Attorneys are selected from more than 70 practice areas and all firm sizes, assuring a credible and relevant annual list.

The annual selections are made using a patented multiphase process that includes:

  • Peer nominations
  • Independent research by Super Lawyers
  • Evaluations from a highly credentialed panel of attorneys

The objective of the Super Lawyers lists is to create a credible, comprehensive and diverse listing of outstanding attorneys to be used as a resource for both referring attorneys and consumers seeking legal counsel.

For more information, go to SuperLawyers.com. Super Lawyers is a registered trademark of Thomson Reuters.

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #superlawyers

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.

© 2021 Richard A. Klass

R. A. Klass
Your Court Street Lawyer

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Scales of justice illustrating article about legal malpractice.