Statute of Limitations

…Applicable to the particular matter in which malpractice is claimed

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The statute of limitations in legal malpractice cases can be tolled when there has been continuous representation of the client by the attorney. However, it is applicable only to the particular matter in which malpractice is claimed.

See, Davis v Cohen & Gresser, LLP, 160 AD3d 484, 486 [1st Dept 2018], in which the court held:

“ the continuous representation doctrine does not apply where there is only a vague “ ongoing representation ” (Johnson v. Proskauer Rose LLP, 129 A.D.3d 59, 68, 9 N.Y.S.3d 201 [1st Dept. 2015] ). For the doctrine to apply, the representation must be specifically related to the subject matter underlying the malpractice claim, and there must be a mutual understanding of need for further services in connection with that same subject matter (see Shumsky, 96 N.Y.2d at 168, 726 N.Y.S.2d 365, 750 N.E.2d 67; see also CLP Leasing, 12 A.D.3d at 227, 784 N.Y.S.2d 535). ”

R. A. Klass
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Issue of fact concerning the continuous representation doctrine

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In an action brought by a client against his law firm, the appellate court reversed the granting of the law firm’s motion for summary judgment based upon an issue of fact concerning the continuous representation doctrine.

Under the continuous representation doctrine, a person seeking professional assistance is placed in a difficult position if required to sue his or her attorney while the attorney continues to represent them on a particular legal matter (Shumsky v. Eisenstein, 96 N.Y.2d 164, 167–168, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001] ). Accordingly, the doctrine tolls the running of the statute of limitations on malpractice claims until the ongoing representation is completed (id.). However, the application of this doctrine is limited “to the course of representation concerning a specific legal matter,” and is not applicable to the client’s “continuing general relationship with a lawyer … involving only routine contact for miscellaneous legal representation … unrelated to the matter upon which the allegations of malpractice are predicated” (id. at 168, 726 N.Y.S.2d 365, 750 N.E.2d 67). The record presents an issue of fact as to whether defendant continuously represented plaintiff in connection with a personal injury claim based on the accident, such as to toll the statute of limitations during that time (see Glamm v. Allen, 57 N.Y.2d 87, 94, 453 N.Y.S.2d 674, 439 N.E.2d 390 [1982]; Waggoner v. Caruso, 68 A.D.3d 1, 6–7, 886 N.Y.S.2d 368 [1st Dept. 2009] ). Encalada v McCarthy, Chachanover & Rosado, LLP, 160 AD3d 475 [1st Dept 2018].

R. A. Klass
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Issue: whether an attorney “continuously represented” his client.

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The issue as to whether an attorney “ continuously represented ” his client in such a manner as to extend the statute of limitations to bring an action for legal malpractice created an issue of fact, as determined by the First Department in Cordero v. Koval, Retjig & Dean PLLC.

~ ~ ~

Rolando Cordero, Respondent,

v

Koval Retjig & Dean PLLC et al., Appellants.

Supreme Court, Appellate Division, First Department, New York

113450/11, 3740

June 20, 2017

Rivkin Radler LLP, New York (Jonathan B. Bruno of counsel), for appellants.

Law Office of Steven C. Pepperman, New York (Steven C. Pepperman of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered March 21, 2016, which denied defendants’ motion for summary judgment dismissing the complaint alleging legal malpractice, unanimously affirmed, without costs.

The claim for malpractice accrued when defendants failed to timely file a notice of claim (see General Municipal Law § 50-e) upon the City of New York and the New York City Department of Transportation after plaintiff was allegedly injured in a fall from his motorcycle because he struck a defectively-placed construction plate in the road (see generally Glamm v Allen, 57 NY2d 87, 93 [1982]). However, the evidence raised triable issues whether the malpractice statute of limitations (CPLR 214 [6]) was tolled under the continuous representation doctrine. Mark Koval, an attorney formerly employed by defendant law firm, joined another law firm at or about the time plaintiff’s personal injury case was transferred to such new law firm. Defendants admit that plaintiff’s case was transferred to the new firm, and Koval does not deny having worked on the case at either the old or new firm (see generally Antoniu v Ahearn, 134 AD2d 151 [1st Dept 1987]; HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP, 63 AD3d 534, 535 [1st Dept 2009]). Although Koval claims he subsequently left the new firm and did not take plaintiff’s case with him, there is no evidence that plaintiff was ever informed of, or had *2 objective notice of, Koval’s departure such as to end the continuous representation circumstance and the tolling of the statute of limitations (see Shumsky v Eisenstein, 96 NY2d 164, 167-169, 170 [2001]). Concur—Sweeny, J.P., Richter, Andrias, Webber and Gesmer, JJ.

Copr. (C) 2017, Secretary of State, State of New York

R. A. Klass
Your Court Street Lawyer

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Evidence provided by defendant-law firm…failed to conclusively establish its defense

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In Prott v. Lewin & Baglio, LLP, the Second Department decided that the documentary evidence provided by the defendant-law firm in support of its motion to dismiss the legal malpractice action failed to conclusively establish its defense as a matter of law.

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Supreme Court of the State of New York Appellate Division: Second Judicial Department 2016-03968 DECISION & ORDER Jacinto Prott, respondent, v Lewin & Baglio, LLP, et al., appellants. (Index No. 9322/15) Carroll, McNulty & Kull, LLC, New York, NY (Robert Seigal of counsel), for appellants. Sacco & Fillas, LLP, Astoria, NY (Donald N. Rizzuto and Patricia R. Lynch of counsel), for respondent. In an action, inter alia, to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Queens County (Livote, J.), dated February 25, 2016, which denied their motion pursuant to CPLR 3211(a) to dismiss the complaint. ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging breach of contract and negligence, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements. The plaintiff commenced this action against the defendants, inter alia, to recover damages for legal malpractice. The plaintiff alleged that, although he retained the defendants to prosecute an action on his behalf, the defendants failed to commence the action before the expiration of the applicable statute of limitations in December 2012. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint, and the Supreme Court denied the motion. “A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law” (Mawere v Landau, 130 AD3d 986, 987 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). The evidence submitted in support of such motion must be “‘documentary’” or the motion must be denied (Fontanetta v John Doe 1, 73 AD3d 78, 84, quoting Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:10, at 22; see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714). In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence, it must be “unambiguous, authentic, and undeniable” (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [internal quotation marks omitted]). “[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 AD3d at 84-85 [internal quotation marks omitted]). “Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence” (25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co., 127 AD3d 850, 851; see Attias v Costiera, 120 AD3d 1281, 1283; Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714; Granada Condominium III Assn. v Palomino, 78 AD3d at 997; Fontanetta v John Doe 1, 73 AD3d at 86). Here, the evidence submitted by the defendants, which included a letter dated September 28, 2012, purporting to terminate the attorney-client relationship between the plaintiff and the defendants, did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) and, in any event, failed to utterly refute the plaintiff’s factual allegations, thereby failing to conclusively establish a defense as a matter of law (see Mawere v Landau, 130 AD3d at 990; Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790, 792; 25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co., 127 AD3d at 851; Louzoun v Kroll Moss & Kroll, LLP, 113 AD3d 600, 601-602). Therefore, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(1) to dismiss the legal malpractice cause of action. Furthermore, since the defendants’ evidence failed to establish that a material fact as claimed by the plaintiff, namely, the existence of an attorney-client relationship at the time of the alleged malpractice, was “not a fact at all” and that “no significant dispute exists regarding it” (Guggenheimer v Ginzburg, 43 NY2d 268, 275), the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the legal malpractice cause of action (see Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d at 793). However, the causes of action alleging breach of contract and negligence are duplicative of the legal malpractice cause of action, since they arise from the same facts as those underlying the legal malpractice cause of action, and do not allege distinct damages (see Lewis, Brisbois, Bisgaard & Smith, LLP v Law Firm of Howard Mann, 141 AD3d 574, 576; Smith v Kaplan Belsky Ross Bartell, LLP, 126 AD3d 877, 879; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813-814). Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging breach of contract and negligence. MASTRO, J.P., LEVENTHAL, HALL and SGROI, JJ., concur.

R. A. Klass
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Debt Collection Tips: Motions to Dismiss Affirmative Defenses or Counterclaims

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After a suit is filed against a debtor to collect upon a debt, the defendant will file an Answer which may include ” affirmative defenses ” or ” counterclaims. ” These allegations must be handled with vigilance from the onset to attempt successful recovery in the litigation.

An ” affirmative defense ” is a defense to a law suit which must be proved by the defendant. Examples of affirmative defenses would include, e.g., bankruptcy, statute of limitations, improper service, and accord and satisfaction. The notion is that those types of defenses would likely be determinative to the claim. Therefore, the defendant must assert them in the Answer so as not to “surprise” the plaintiff-creditor at the time of trial. Some affirmative defenses must be asserted either pre-Answer or in the Answer, or they are deemed waived by the defendant. After receipt of the Answer, the plaintiff’s counsel should scan the Answer to identify any affirmative defenses and assess their viability. To the extent that an affirmative defense seems frivolous, meritless, or superfluous, an appropriate motion to dismiss the affirmative defense should be made sooner rather than later. The court will then determine whether to sustain the affirmative defense or dismiss it from the onset of the litigation.

As to any counterclaims which may be asserted in the Answer, a careful review must take place as to whether it relates to the matter complained of in the complaint, or relates to a separate matter. Sometimes, the plaintiff will have an insurance policy which covers the counterclaim, and the insurance company will provide a defense to the counterclaim separate from the prosecution of the underlying suit. If it is deemed that the counterclaim “fails to state a valid cause of action,” then an appropriate motion may be brought to dismiss the same.

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