In Pace v Horowitz, 190 AD3d 619 [1st Dept 2021], the plaintiffs could not show that the continuous representation toll applied. It was held:

The court correctly determined that plaintiffs failed to show that there is an issue of fact as to whether the legal malpractice claim was timely filed based on the application of the continuous representation doctrine toll (see Marzario v. Snitow Kanfer Holzer & Millus, LLP, 178 A.D.3d 527, 528, 116 N.Y.S.3d 199 [1st Dept. 2019] ). The continuous representation doctrine toll does not apply based merely on the existence of an ongoing professional relationship, but only where the particular course of representation giving rise to the particular problems resulting in the alleged malpractice is ongoing (see Matter of Lawrence, 24 N.Y.3d 320, 341, 998 N.Y.S.2d 698, 23 N.E.3d 965 [2014]; Williamson v. PricewaterhouseCoopers LLP, 9 N.Y.3d 1, 840 N.Y.S.2d 730, 872 N.E.2d 842 [2007] ). Here, while plaintiffs allege that defendant law firm provided continuing estate administration work as part of an ongoing professional relationship of estate administration, they do not adequately allege that the particular course of representation regarding the sale of estate assets in 2007, which gave rise to the malpractice allegations, continued through February 2015, so as to make the instant malpractice claim timely filed.

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In Zeppieri v Vinson, 190 AD3d 1173 [3d Dept 2021], the court affirmed the dismissal of a legal malpractice action where the lower court relied on an order as documentary evidence. The court held:

Plaintiff Thomas J. Zeppieri is the Chief Executive Officer of plaintiff Adirondack Entertainment and Recreation, Inc. Defendant Jessica Hugabone Vinson is an attorney employed by defendant Barlett, Pontiff, Stewart & Rhodes, P.C. Plaintiffs retained defendants to represent them against Adirondack Lakeview, LLC and The Fort Henry Corp. (hereinafter collectively referred to as Adirondack Lakeview) in a property boundary dispute (hereinafter the underlying action). In the underlying action, Adirondack Lakeview alleged causes of action contending encroachment and trespass. Defendants, on plaintiffs’ behalf, answered and asserted counterclaims for adverse possession and a prescriptive easement. Following a trial in the underlying action, Supreme Court (Muller, J.), by order dated July 3, 2018, found plaintiffs liable for encroachment and trespass and dismissed plaintiffs’ counterclaims as meritless.

Thereafter, plaintiffs commenced this action for legal malpractice. The primary contention in the amended complaint was that Vinson failed to object to inadmissible hearsay testimony by Robert F. Flacke, Adirondack Lakeview’s president, and that such testimony destroyed their counterclaims for adverse possession and easement by prescription. Defendants moved, pre-answer, to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7) and 3013, arguing, among other things, that plaintiffs’ claims were vague, conclusory and otherwise refuted by documentary evidence. Supreme Court (McGrath, J.) found that the July 2018 order constituted documentary evidence that directly refuted plaintiffs’ primary allegation of malpractice and that the remaining allegations were conclusory. As such, Supreme Court granted defendants’ motion to dismiss the amended complaint. Plaintiffs appeal arguing that Supreme Court erred in relying on impermissible documentary evidence.

To recover damages for legal malpractice, “a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 [2007] [internal quotation marks and citations omitted]; see Mid–Hudson Val. Fed. Credit Union v. Quartararo & Lois, PLLC, 155 A.D.3d 1218, 1219–1220, 64 N.Y.S.3d 389 [2017], affd 31 N.Y.3d 1090, 78 N.Y.S.3d 703, 103 N.E.3d 774 [2018] ). When determining whether a complaint fails to state a cause of action, “the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide the plaintiff the benefit of every possible inference” (MLB Constr. Servs., LLC v. Lake Ave. Plaza, LLC, 156 A.D.3d 983, 984, 66 N.Y.S.3d 568 [2017] [internal quotation marks, brackets and citations omitted]; see Sim v. Farley Equip. Co. LLC, 138 A.D.3d 1228, 1228, 30 N.Y.S.3d 736 [2016] ). “However, allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration” (Myers v. Schneiderman, 30 N.Y.3d 1, 11, 62 N.Y.S.3d 838, 85 N.E.3d 57 [2017] [internal quotation marks and citations omitted]; see Wisdom v. Reoco, LLC, 162 A.D.3d 1380, 1381, 79 N.Y.S.3d 717 [2018] ).

“A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint as barred by documentary evidence may be properly granted only if the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law. To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity” (Koziatek v. SJB Dev. Inc., 172 A.D.3d 1486, 1486, 99 N.Y.S.3d 480 [2019] [internal quotation marks and citations omitted] ). “[I]t is clear that judicial records, as well as … any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Jenkins v. Jenkins, 145 A.D.3d 1231, 1234, 44 N.Y.S.3d 223 [2016] [internal quotation marks and citations omitted]; see Magee–Boyle v. Reliastar Life Ins. Co. of N.Y., 173 A.D.3d 1157, 1159, 105 N.Y.S.3d 90 [2019] [internal quotation marks, brackets and citation omitted] ).

In support of their motion, defendants submitted the July 2018 order, the transcript of the bench trial and an email that had been accepted into evidence. The July 2018 order clearly qualifies as documentary evidence. As Supreme Court observed, the July 2018 order “refutes plaintiffs’ primary contention that defendants’ failure to object to Flacke’s testimony was the proximate cause of plaintiffs’ damages.” Where Supreme Court specifically states that its order is based on the decision from the underlying action, we find ourselves with “the proper case” in which a judicial record qualifies as appropriate documentary evidence sufficient to defeat the action (Jenkins v. Jenkins, 145 A.D.3d at 1234, 44 N.Y.S.3d 223). Moreover, even if the court also relied on the underlying transcript, contrary to plaintiff’s contention, there is no per se prohibition on said reliance, where, as here, the contents of the transcript are undeniable (see Tyree v. Castrovinci, 164 A.D.3d 1399, 1400, 81 N.Y.S.3d 741 [2018] ). We agree that Supreme Court properly granted defendants’ motion to dismiss the amended complaint based upon documentary evidence (see Ganje v. Yusuf, 133 A.D.3d 954, 957, 19 N.Y.S.3d 355 [2015]; Doller v. Prescott, 167 A.D.3d 1298, 1300, 91 N.Y.S.3d 533 [2018] ). Given our finding, the remainder of plaintiffs’ arguments are academic.

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In Lavelle-Tomko v Aswad & Ingraham, 191 AD3d 1142, 1148 [3d Dept 2021], the court dismissed the law firm’s affirmative defense re Article 16 joint tortfeasors, holding:

“plaintiff is entitled to dismissal of defendants’ third affirmative defense based on CPLR article 16, which does not apply to this action. The provisions of that article apply to joint tortfeasors sharing liability for noneconomic damages (see CPLR 1601, 1602); legal malpractice actions permit a plaintiff to recover only economic damages (see Kaiser v Van Houten, 12 AD3d 1012, 1014 [2004]; Risman v Leader, 256 AD2d 1245, 1245 [1998]).”

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The court in Bianco v Law Offices of Yuri Prakhin, 189 AD3d 1326 [2d Dept 2020] held that only certain documentary evidence can qualify for dismissal of an action under CPLR 3211(a)(1):

On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see CPLR 3026). The facts as alleged in the complaint are accepted as true, the plaintiff is afforded the benefit of every possible favorable inference, and the court determines only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Under CPLR 3211(a)(1), a dismissal is warranted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511). In order for evidence to qualify as documentary, it must be unambiguous, authentic, and undeniable (see Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 996–997, 913 N.Y.S.2d 668; Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569). “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Fontanetta v. John Doe 1, 73 A.D.3d at 84–85, 898 N.Y.S.2d 569 [internal quotation marks omitted]; see First Choice Plumbing Corp. v. Miller Law Offs., PLLC, 164 A.D.3d 756, 758, 84 N.Y.S.3d 171). Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1) (see *579 Fox Paine & Co., LLC v. Houston Cas. Co., 153 A.D.3d 673, 678, 60 N.Y.S.3d 294; Granada Condominium III Assn. v. Palomino, 78 A.D.3d at 997, 913 N.Y.S.2d 668).

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