The Statute of limitations is an embodiment of a social policy which, in essence keeps the world turning. Old, stale claims have an expiration date, and little opportunity exists to keep them alive. Even continuous representation, in the legal malpractice setting, has significant limits. Mehra v Morrison Cohen LLP 2020 NY Slip Op 33234(U) October 2, 2020
Supreme Court, New York County Docket Number: 159868/2019 Judge: O. Peter Sherwood is an example of the statute in play in a commercial setting.
“Plaintiffs assert claims for:
1) Malpractice against all defendants, as defendants failed to exercise the required degree of care in drafting the Holding operating agreement to protect Mehra’s voting and control rights, and possibly also his economic rights.
2) Breach of fiduciary duty against all defendants, for recommending a change to the Holding operating agreement which favored Teller over Mehra and for advising Teller on how to deprive Mehra of his rights to the business. ”
“Defendants argue that, since almost all of the allegations of their malpractice were for events in or before 2014, the only conduct alleged within the three-year statute of limitations is their participation in the 2016 operating agreement revisions, which is alleged only upon information and belief. Invoices subpoenaed from EOS show legal services relating to the operating agreement were performed only by Allen & Overy, not defendants (Memo, NYSCEF Doc. No. 17, at 8-9). Accordingly, defendants argue any claims related to their work in 2014 is barred by the statute of limitations or superseded by the intervening counsel by Allen & Overy in 2016. Even if the Firm did work on the 2016 revisions, the provisions at issue here were in the 2014 originals, meaning that the 2016 work (if there was any) was not the proximate cause of plaintiffs’ injuries. ”
“However, plaintiffs have not alleged damages from the alleged 2016 revision work by the defendants. Plaintiffs effectively allege defendants worked on the revisions and failed to correct the alleged 2014 malpractice. However, defendants allege they were injured by the “loss of voting power and control over business operations” (Opp at 20), which occurred when the operating agreements were signed in 2014. Plaintiffs also note that “[h]ad Defendants exercised the appropriate degree of care in implementing their clients’ request for an equal partnership, [the injuries] could not have happened” (id. at 10). Accordingly, the malpractice claim accrued in 2014. As far as plaintiffs allege the statute of limitations was tolled by the continuous
representation doctrine, they have not alleged continuous representation. “The continuous representation doctrine . . . recognizes that a person seeking professional assistance has a right to
repose confidence in 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. The doctrine also appreciates the client’s dilemma if required to sue the attorney while the latter’s representation on the matter at issue is ongoing (Shumsky v Eisenstein, 96 NY2d 164, 167 
[internal citations omitted]). “Application of the continuous representation . . . doctrine is nonetheless generally limited to the course of representation concerning a specific legal matter . .
. . Instead, in the context of a legal malpractice action, the continuous representation doctrine tolls he Statute of Limitations only where the continuing representation pertains specifically to the matter in which the attorney committed the alleged malpractice (id. at 168 [internal citations omitted]). Plaintiffs have not alleged continuous representation, but two instances of representation. They have not alleged representation on this matter was continuous from 2014
through 2016. Accordingly, the malpractice claim is barred by the statute of limitations and fails as untimely. “