Real Estate Transactions and the Statute of Limitations

Plaintiff buys a co-op in 2002.  She re-finances in 2008 using the same attorney.  In 2010 she hires the same attorney to sell the unit and  learns for the first time that the certificate of occupancy permits the unit to be used only as a professional office, not for residential use.  Is an action for legal malpractice commenced in 2010 timely or barred by the statute of limitations?

Attwood v Sokol   2012 NY Slip Op 32744(U)  October 25, 2012  Supreme Court, New York County
Docket Number: 112043/2010  Judge: Saliann Scarpulla, to our surprise, holds that the action is timely.  We had always thought of the continuing representation principal as an archepellego.  If the distance between the events (islands) was less than 3 years, then one could skip from island to island and still be within the statute.  Here, there was more than 3 years between events, yet the action is timely.

"The parties do not dispute that the applicable statute of limitations for legal malpractice is three (3) years. Waggoner v. Carum, 68 A.D.3d 1, 6 (1st Dep’t 2009) (citing CPLR 24 l(6); 203(a)). “A legal malpractice claim accrues when the malpractice is committed, not when the client discovers it. Under the ‘continuous representation’ doctrine, however, a client cannot reasonably be expected to assess the quality of the professional service while it is still in progress.” West Village Assocs. Ltd. Partnership v. Balber Pickard Battistoni Maldonado & Ver Dan Tuin, PC, 49 A.D.3d 270 ( l1st Dept’t 2008). “The doctrine is ‘generally limited to the course of representation concerning a specific legal matter,’ and this is ‘not applicable to a client’s . . . continuing general relationship with a lawyer . . . involving only routine contact for miscellaneous legal representation . . . unrelated to the matter upon which the allegations of malpractice are predicated.”’ Id., quoting Shumsky v. Eisenstein, 96 N.Y.2d 164, 168 (2001).

Here, Sokol continued to represent Attwood on various real estate matters involving the premises, including her refinance in 2008 and her attempt to sell the property in 2010.See Farrauto, Berman, Fontana & Selznick v. Vorasak Keowongwan, 166 Misc. 2d 804, 808 (Yonkers City Court 1995)  where attorneys continued to represent client “on various real estate matters” involving the property . . . “the Statute of Limitations would be tolled until [defendant’s] representation ceased”).
Sokol’s attempt to establish that he did not continuously represent Attwood is unavailing. Sokol did not represent Attwood in relation to any other properties, or in any other real estate transactions, or other non-real estate matters. Additionally, Sokol testified at his deposition that the issue of  whether the premises could be used as a residence arose during the 2002 closing, when he had to “educate” the mortgage lender because the premises was not a “classic” residential apartment.
Sokol further asserts that his representation of Attwood in 2008 for the refinance of her mortgage was unrelated to her purchase, and that Attwood could have hired any attorney to assist her.  However, Attwood submitted documents produced by Sokol in discovery in this action, which show the issue of whether the premises could be used as a residence was raised that during the course of the refinance. The issue of the certificate of occupancy, therefore, was something which Sokol had to deal with continuously, from the time of the purchase and closing, to the refinance,
and eventually when Attwood attempted to sell the premises in 201 0. Accordingly, because Sokol continuously represented Attwood, the statute of limitations was tolled, and Attwood’s action against him is timely."