No Continuous Representation? No Case!

Albany / Syracuse:

The statute of limitations exists so that the courts can carry on.  Were it not for the S/L, courts would still be delving into wrongs that took place before World War 2.  Legal malpractice has a 3 year statute of limitations, which is somewhat ameliorated by the continuous representation doctrine.  So long as the attorney is representing the client in the same matter, the S/L does not start to run.

It is more difficult to determine when the continuous representation ends in a transactional setting than in a litigation setting.  it's easy to see when the attorney was substituted out, or the case ended.  It not so easy to determine when negotiations over a transaction might have ended.

in Priola v Fallon  2014 NY Slip Op 03130 Released on May 2, 2014 Appellate Division, Fourth Department we see a case dismissed after plaintiff cannot show that representation continued. 
 

"Memorandum: In this legal malpractice action, plaintiff appeals from an order granting defendants' motion for summary judgment dismissing the amended complaint on the ground that, inter alia, the action was time-barred. Plaintiff contends that Supreme Court erred in granting the motion because the statute of limitations was tolled by the continuous representation doctrine. We reject that contention. "A cause of action for legal malpractice accrues when the malpractice is committed" (Elstein v Phillips Lytle, LLP, 108 AD3d 1073, 1073 [internal quotation marks omitted]). Here, defendants established that any malpractice occurred, at the latest, in 2003 and thus made a prima facie showing that the action was time-barred (see International Electron Devices [USA] LLC v Menter, Rudin & Trivelpiece, P.C., 71 AD3d 1512, 1512). "The burden then shifted to plaintiff[] to raise a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine" (id.; see Macaluso v Del Col, 95 AD3d 959, 960), and plaintiff failed to meet that burden inasmuch as he failed to present the requisite " clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney' " to toll the statute of limitations (Kanter v Pieri, 11 AD3d 912, 913; see Guerra Press, Inc. v Campbell & Parlato, LLP, 17 AD3d 1031, 1032-1033). In light of our determination, we do
not address plaintiff's remaining contentions. "

Post A Comment / Question






Remember personal info?