Attorneys and client have a number of related cases arising out of a real estate transaction. They are in and out of some of the transactions, and other eventually go sour. How does the continuous representation doctrine play out in this setting?
In RJR Mech. Inc. v Ruvoldt 2017 NY Slip Op 31232(U) June 8, 2017 Supreme Court, New York County Docket Number: 158764/2015 Judge Jeffrey K. Oing discusses the various principles and application of the continuous representation doctrine.
“On or about August 25, 2016, plaintiff filed a new complaint, which is the subject of this motion, wherein it alleges, again, claims for 1) legal malpractice, and 2) unjust enrichment stemming from defendants’ failure to inform it of the alleged proposed settlement offer as well as failure to prepare for trials and hearings (the “second action”) . As with the allegations in the first action, in this action, plaintiff alleges that in 2002 it retained Ruvoldt to represent it, as the plaintiff, in a mortgage foreclosure action, .which was originally commenced by the lender, but assumed by plaintiff after it had . . \ . acquired the lender’s interest in the mortgage for the Maspeth Property (Norwest Bank Minnesota,. N.A. v E.M.V. Realty Corp., Index No. 20159/200.2 [Sup Ct, Queens County] [the “Norwest Bank action”]) (Verified Complaint)”
“Plaintiff’s new allegations are as follows. Plaintiff alleges that not only did Ruvoldt represent it in the Norwest Bank action,.but he also represented it in another action commenced in 2004 against it and related to the Maspeth Property: EMV Realty Corp. v RJR Mechanical- Inc., ‘Index No. 14778/2004 (Sup Ct, Queens County) (the “EMV Realty actionn). Plaintiff alleges it retained Ruvoldt to represent it and one of its principalsj Roy Leibo~itz (“Leibowitzn) in the EMV Realty action (Verified Complaint, !! 14-15). The EMV Realty action has laid dormant since 2005, save for a single 2011 substitution of counsel (Elman Affirm., Ex. C). On February~ry 11, 2011, Kevin J. Espinosa (“Espinosan), an attorney at Hodgson Russ, sent an email to plaintiff’s representative, Randy Karpman (“Karpman), notifying plaintiff th~t an appeal for the Norwest Bank action needed to be perfected by March 23, 2011 .(Verified :Complaint, ! 22; Espinosa Affirm, Ex. A). In the email, Espinosa advised Karpman that if he did not hear from plaintiff by February 25, 2011 defendants would no longer be able to represent it on the appeal (Id.). In. this email, Espinosa did not mention anything about withdrawing from the EMV Realty action or from other aspects of the Norwest Bank action (Verified Complaint, ! 22; Espinosa Affirm., Ex. A). ”
“The continuous representation doctrine, which is the offspring of the continuous treatment doctrine, recognizes that a layperson seeking legal assistance “[h]as a right to repose confidence ~n the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services· are rendered” (Greene v Greene, 56 NY2d 86, 94 ; Matter of Lawrence, 24 N~3d 320, 342-343 ). “The continuous representation doctrine tolls a statute of limitations where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (Zorn v Gilbert, 8 NY3d 933, 934  [internal quotations and citations omitted]). The two prerequisites needed to invoke a continuous representation toll are 1) a claim of misconduct regarding the mann~r in which the profession~l services were performed,· and 2) the ongoing provision bf professional services.with respect to the contested matter or transaction (Matter of Lawrence, 24 NY3d at 342). The ongoing representation must be specifically related to the matter in which the attorney committed the alleged malpractice (Id.; Johnson v Proskauer Rose LLP, 129 AD3d 59, 68 [1st Dept 2015]). The continuous representation doctrine is inapplicable where “plaintiff’s allegations establish defendant[s’] failures within a continuing professional relationship, not a course of representation as to the particular problems (conditions) that gave rise to plaintiff’s malpractice claims” (Id. at 341-342 [internal quotations and citations·omitted]). Here, plaintiff cont’ends that prior to its decision to substitute defendants as counsel it was unaware that defendants no longer intended t6 represent·~t and that defendants’ letters were not indicative of such. Rather plaintiff asserts that defendants’. letters established that they would continue to represent it in the settlement of the Norwest Bank action and the EMV Realty aeration.
“Further, and more importantly, in order for a legal malpractice claim to be subject to the continuous representation toll, the ongoing representation must be directly linked to the alleged malpractice. Given that plaintiff has failed to plead with sufficiency that the EMV Realty action is related to the underlying allegations of legal malpractice, the continuous representation doctrine cannot be transferred to the second action based on the EMV Realty action. Based on the foregoing, plaintiff’s legal malpractice claim is time barred.”