Client is involved in a fraudulent transaction, or even in an investment gone sour, and seeks to get the investment money back. Client looks to see who might be responsible, and attorneys are always a good target. This sometimes leads to dismissals of legal malpractice cases on standing, privity and statute of limitations.
Goldin v Tag Virgin Is. Inc. 2014 NY Slip Op 31308(U) May 20, 2014 Supreme Court, New York County Docket Number: 651021/2013 Judge: Eileen Bransten is such an example. "In this action, Plaintiffs Steven Goldin and Rochelle Goldin bring claims on behalf two accounts managed by Defendant TAG Virgin Islands, Inc. ("TAG")-the Bernice Goldin IRA and the Paul Goldin Marital Trust B ("Trust") (collectively, the "accounts"). Relevant to the instant motion, Plaintiffs assert a variety of tort and contract claims related to the accounts against Defendant TAG, an investment advisory group, and its two owners, Defendants James S. Tagliaferri and Patricia Cornell. In addition, Plaintiffs bring claims against TAG’s legal counsel, Barry Feiner.
Defendant Feiner was TAG1s legal counsel, and according to Plaintiffs, "mostly drafted" certain of the convertible note instruments through which Plaintiffs’ funds were transferred to TAG-related companies. In addition, Plaintiffs contend that Feiner was responsible for wiring Plaintiffs’ funds to the TAG-affiliated companies, including the IEAH Defendants. These allegations are all pleaded "on information and belief." See Compl. para. 81. Based on these allegations, Plaintiffs assert four claims against Feiner – legal malpractice, aiding and abetting breach of fiduciary duty, unjust enrichment, and fraud. Feiner now seeks dismissal of each of these claims pursuant to CPLR 3211 l(a)(5) and (a)(7). In addition, Feiner contends that Plaintiffs’ aiding and abetting and fraud claims are not pleaded with the requisite specificity under CPLR 3016(b). Each of Feiner
arguments will be examined in turn below.
Defendant Feiner first objects to Plaintiffs’ legal malpractice claim, contending that is time-barred. "In moving to dismiss a cause of action pursuant to CPLR 321 l(a)(S) as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired." City of Yonkers v. 58A JVD Indus., Ltd., 115 A.D.3d 635, 635 (2d Dept 2014) "The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether it actually commenced the action within the applicable limitations period." Id.
Plaintiffs do not dispute that the legal malpractice cause of action accrued as late as June 2008. Instead, they contend that the statute of limitations should be tolled under the continuous representation doctrine, which provides for tolling "while representation on the same matter in which the malpractice is alleged is ongoing." Waggoner, 68 A.D.3d at 7. Even assuming, arguendo, that Feiner represented Plaintiffs in the first place when the notes were drafted, Plaintiffs provide no support for the proposition that he continued to represent them in the same matter, i.e. during the pendency of the notes through maturation. "The [continuous representation] doctrine is rooted in recognition that a client cannot be expected to jeopardize a pending case or relationship with an attorney during the period that the attorney continues to handle the case." Id. Here, however, there is no allegation that Feiner continued handling the notes through maturation. Accordingly, the continuous representation doctrine does not apply under the facts as pleaded by Plaintiffs in their Complaint, and the legal malpractice claim is dismissed as untimely"
Even if timely brought, Plaintiffs’ legal malpractice claim nonetheless would be dismissed for failure to state a cause of action. ‘A cause for legal malpractice cannot be stated in the absence of an attorney-client relationship." Waggoner, 68 A.D.3d at 5. However, Plaintiffs here fail to plead that they had such a relationship with Defendant Feiner. As discussed above, Plaintiffs’ legal malpractice claim stems from Feiner’s representation of TAG in drafting the convertible notes. Since Feiner did not represent Plaintiffs and was performing services only on behalf of TAG, no attorney-client relationship has been stated. See Federal Ins. Co. v. North American Specialty Ins. Co., 47 A.D.3d 52, 59 (1st Dep’t 2007) ("New York courts impose a strict privity requirement
to claims of legal malpractice; an attorney is not liable to a third party for negligence in performing services on behalf of his client.").