One sentence in 3rd & 6th, LLC v Berg 2017 NY Slip Op 02768 Decided on April 12, 2017
Appellate Division, Second Department opinion says two things. When does the statute of limitations commence? When the negligent act takes place or when all the elements come together?
“An action to recover damages arising from legal malpractice must be commenced within three years, computed from the time the cause of action accrued to the time the claim is interposed (see CPLR 214; McCoy v Feinman, 99 NY2d 295; Rakusin v Miano, 84 AD3d 1051; Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749). ” A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court. In most cases, this accrual time is measured from the day an actionable injury occurs, even if the aggrieved party is then ignorant of the wrong or injury. What is important is when the malpractice was committed, not when the client discovered it'” (Tantleff v Kestenbaum & Mark, 131 AD3d 955, 956, quoting McCoy v Feinman, 99 NY2d at 301). Continuous representation may toll the statute of limitations, but “only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (McCoy v Feinman, 99 NY2d at 306; see Shumsky v Eisenstein, 96 NY2d 164; Tantleff v Kestenbaum & Mark, 131 AD3d at 956-957; Pittelli v Schulman, 128 AD2d 600, 601).
On a motion to dismiss a complaint as time-barred, a defendant must establish, prima facie, that the time in which to commence the action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable (see Bullfrog, LLC v Nolan, 102 AD3d 719; Rakusin v Miano, 84 AD3d 1051, 1052).
Here, the defendants established, prima facie, that the action was time-barred by demonstrating that the closing for the sale of the business took place in December 2009, while the action was commenced in March 2014 (see Bullfrog, LLC v Nolan, 102 AD3d at 720; Rakusin v Miano, 84 AD3d at 1052). In opposition, the plaintiff failed to raise a question of fact as to whether continuous representation tolled the statute of limitations (see McCoy v Feinman, 99 NY2d at 306; Bullfrog, LLC v Nolan, 102 AD3d at 720).