Motions to dismiss under CPLR 3211(a)(5) are often made in legal malpractice cases. One reason is that there is often a long latency period between the mistake and its surfacing. This latency period regularly leads to cases that are brought more than 3 years after the mistake. The continuous representation principal allows a plaintiff 3 years from the last date that the attorney represented the client in the same matter.
In Kitty Jie Yuan v 2368 W. 12th St., LLC 2014 NY Slip Op 05174 Decided on July 9, 2014
Appellate Division, Second Department we see the AD reversing on this issue. "Here, the defendant Ronen Shiponi established his prima facie entitlement to dismissal of the complaint based on the expiration of the three-year statute of limitations applicable to the cause of action, inter alia, to recover damages for legal malpractice (see CPLR 214). In opposition, however, the plaintiffs raised a question of fact as to whether the applicable statute of limitations was tolled by the doctrine of continuous representation (see Bill Kolb, Jr., Subaru, Inc. v LJ Rabinowitz, CPA, 117 AD3d 978, 980; Macaluso v Del Col, 95 AD3d 959, 960-961; Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C., 80 AD3d 573, 574; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017-1018; Rehberger v Garguilo & Orzechowski, LLP, 50 AD3d 760, 760; Deutsch v Polly N. Passonneau, P.C., 297 AD2d 571). Accordingly, the Supreme Court should have denied that branch of Shiponi’s motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred."