Mineola, NY: In an appeal from the decision and order of Supreme Court, Nassau County, the Second Department reminds all that the statute of limitations is an unforgiving obstacle.
Quinn v McCabe, Collins, McGeough & Fowler, LLP 2016 NY Slip Op 03153 Decided on April 27, 2016 Appellate Division, Second Department discusses the statute, continuous representation, tolling, and the requirements of trust and confidence.
“The statute of limitations for a cause of action alleging legal malpractice is three years (see CPLR 214[6];Farage v Ehrenberg, 124 AD3d 159, 163). “Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court, regardless of when the operative facts are discovered by the plaintiff” (Farage v Ehrenberg, 124 AD3d at 164 [citations omitted]; see McCoy v Feinman, 99 NY2d 295, 301; St. Stephens Baptist Church, Inc. v Salzman, 37 AD3d 589, 590).
Causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies (see Glamm v Allen, 57 NY2d 87, 91-94; Farage v Ehrenberg, 124 AD3d at 164; see also Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735). The continuous representation doctrine tolls the statute of limitations where there are clear indicia of “an ongoing, continuous, developing, and dependent relationship between the client and the attorney” (Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d 1037, 1038 [internal quotation marks omitted]; see Farage v Ehrenberg, 124 AD3d at 164).
Here, the defendants Picciano & Scahill, P.C., and Sean Schaefer (hereinafter together the Picciano defendants) met their prima facie burden by establishing that the statute of limitations expired on March 28, 2009, three years after a consent to change attorney form was executed by the plaintiff, the Picciano defendants, and new counsel, and that they did not act on behalf of the plaintiff in the subject actions after the consent was signed (see Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d at 735). Therefore, the Picciano defendants met their prima facie burden of establishing that the three-year statute of limitations period for commencing an action alleging legal malpractice had expired at the time the plaintiff commenced this action on or about September 11, 2014 (see id. at 735-736; see generally Bullfrog, LLC v Nolan, 102 AD3d at 720).”