When does the statute of limitations commence for a legal malpractice claim?  In short, it commences on the date of the mistake.  It can be tolled by continuous representation.  In Ross v Mashkanta, LLC  2021 NY Slip Op 32873(U) December 23, 2021 Supreme Court, Kings County
Docket Number: Index No. 508310/2019 Judge: Carl J. Landicino, the limits of continuous representation were tested, and plaintiff lost.

“In relation to the related foreclosure action, the Plaintiff claims that Mascolo failed to appear on a summary judgment motion which was granted on Plaintiffs default. Summary judgment, in the related litigation, was granted on default against the Plaintiff on July 14, 2010.
The Plaintiff also claims that these failures subjected the Plaintiff to a judgment of foreclosure in relation to his property. The Plaintiff contends that Mascolo failed to appear or oppose a motion/application for judgment of foreclosure. The Plaintiff contends that, as a consequence, a judgment of foreclosure and sale was issued on June 20, 2012. The instant proceeding was commenced against Mascolo on April 12 2019, more than six years after judgment was entered in the foreclosure litigation. The Plaintiff alleges that the interval between the award of the judgment and commencement of this proceeding is irrelevant because the continuous representation doctrine applies.

The doctrine of continuous representation applies when there is “clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” (Stein Industries, Inc. v. Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 789, 51 N.Y.S.3d 183, 185 [2d Dept 2017] quoting Luk Lamellen U Kupplungbau GmbH v. Lerner, 166 AD2d 505, 506- 507, 560 N.Y.S.2d 787 [2d Dept 1990]). However, the Plaintiff has repeatedly represented that his relationship with Mascolo terminated in November of 2012, when he retained new counsel to represent him in the foreclosure litigation. The Plaintiff alleged that,

…subsequent to defendant Mascolo allowing the action in foreclosure to go to default judgment and ultimately to a judgment of foreclosure and sale which was filed July 3, 2012, defendants Levy and Nau substituted in for third-party defendant Mascolo.
As a consequence of Defendant Mascolo’s failure to represent his interests, in or about November 2012, Plaintiff retained Defendants Levy and Nau, doing business as Levy and Nau PC, to represent him in the action brought against him by Mashkanta, and in that capacity, to move in that action to stay the foreclosure and sale. Plaintiff was unaware of any prior history of relationships and/or transactions among Mashkanta, Mascolo, Levy and Nau at the time he retained Levy and Nau to represent him.

(See First Amended Verified Complaint at paragraph 61-62, NYSCEF Doc. No. 12, 13 1).

Accordingly, the doctrine of continuous representation is inapplicable here. This proceeding was commenced after the statutory limitation period expired. Therefore, the ninth cause of action for malpractice is dismissed.”

Plaintiffs  in 286 Corbin Owners Corp. v Berger, 2022 NY Slip Op., 30018(U) January 3, 2022 Supreme Court, Kings County et Number: Index No. 513265/2020 Judge: Wavny Toussaint suffered storm damage from Sandy, and hired defendant attorneys to litigate.  Things went south from there.  The claim languished, the statute ran, and there was no case left.  Will a legal malpractice claim survive motion practice?

“Here, to, the extent that plaintiff alleges that the Berger Defendants carelessly or negligently recommended that it sue Joglo and Toussie and/or that the Berger Defendants , negligently failed to sue the proper defen4ants before the expiration of the statute, of limitations (second cause of action), plaintiff states a claim for legal malpractice. The assertion that plaintiff must allege and identify the “correct” defendant in its pleading to state a claim for malpractice is without any legal support. In any event, whether plaintiff can ultimately prevail on these allegations is not relevant on this pre-answer motion to dismiss (see Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo,
113 AD3d 587, 589 [2d Dept 2014]). The court also declines to dismiss plaintiff’s third cause of action alleging that the Berger Defendants collected legal fees and commenced the underlying action when they knew or should have known that the action had no merit. Defendants do not address the merits of this claim and the proffered documentary evidence does not establish a defense to said claim as a matter of law. “

Drasche v Edelman & Edelman  2022 NY Slip Op 00044 Decided on January 06, 2022 Appellate Division, First Department is a “got an offer but did not communicate it” claim which was dismissed, in part for the failure to prove that the claim was made and in part for failing to allege that the client would have settled had the claim been communicated.

“The underlying defendants ultimately prevailed on a motion for summary judgment, which was affirmed by this Court in Turso-Drasche v Banana Republic, LLC (172 AD3d 485 [1st Dept 2019]). Plaintiff then commenced the instant action against the Edelman firm and two of its attorneys, asserting three causes of action, each of which sought to recover for alleged “damages” arising from defendants’ failure to “advise” her of a purported settlement offer by the underlying defendants. The first cause of action sounded in negligence/malpractice, the second for breach of contract, and the third for violation of rule 1.4 of the New York Rules of Professional Conduct (22 NYCRR 1200.0).

We find that Supreme Court correctly dismissed the complaint in its entirety. Plaintiff’s claim for legal malpractice is based upon a vague and conclusory assertion that after her deposition, counsel for the defendants in the underlying action made a settlement offer to her attorney, and that her attorney did not relay the offer to her. Regardless, the complaint fails to allege that plaintiff would have accepted the offer if she had known of it (see Rubenstein & Rubenstein v Papadakos, 31 AD2d 615, 615 [1st Dept 1968], affd 25 NY2d 751 [1969]).

Furtherplaintiff fails to allege that, but for defendants’ alleged negligence, she would have accepted the settlement offer and would not have sustained any damages (see Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562 [2d Dept 2003], lv denied 100 NY2d 511 [2003]; Cannistra v O’Connor, McGuinness, Conte, Doyle, Oleson & Collins, 286 AD2d 314, 316 [2d Dept 2001], lv denied 97 NY2d 611 [2002]).

To the extent that plaintiff bases her legal malpractice claim on rule 1.4(a)(1)(iii) of the Rules of Professional Conduct, an allegation of legal malpractice based on a violation of the disciplinary rules does not, without other allegations supporting the cause of action[*2], support a malpractice claim (Cohen v Kachroo, 115 AD3d 512, 513 [1st Dept 2014]).”

In a legal malpractice case, Defendants got a WebCivilSupreme notification that the motion was adjourned to August 24, 2020.  That’s where things started to go wrong.

In Reem Contr. v Altschul & Altschul  2022 NY Slip Op 00021 Decided on January 04, 2022 Appellate Division, First Department the Appellate Division reversed and gave defendants a second chance.

Order, Supreme Court, New York County (Kelly O’Neill Levy, J.), entered July 14, 2020, which, upon defendant’s default, denied defendants’ motion for summary judgment on their account stated counterclaim and granted plaintiffs’ motion for summary judgment as to liability on their legal malpractice claim, and order, same court and Justice, entered August 10, 2020, which denied defendants’ letter motion to vacate the July 2020 order and to allow them to submit opposition to plaintiffs’ motion, unanimously reversed, on the facts, without costs, defendant’s letter motion granted and the matter remanded for a determination on the merits.

On this record, the motion court should not have entered a default and should have permitted defendant an opportunity to oppose plaintiff’s motion for summary judgment on the merits. We note that the parties received a notice from the court via

the “e-watch” email service that there was a future appearance on the motions scheduled for August 24, 2020. However, the court issued its order on July 13, 2020. “

While only mentioning legal malpractice in passing, Morrow v Brighthouse Life Ins. Co. of NY  2021 NY Slip Op 07373.  Decided on December 23, 2021, Appellate Division, Fourth Department is an interesting primer on statutes of limitations.

“We agree with defendants that Supreme Court (Ogden, J.) erred in denying those parts of the motion seeking to dismiss the fourth, fifth, sixth, and tenth causes of action as barred by the applicable statute of limitations. Those causes of action were for, respectively, breach of contract, breach of fiduciary duty, conversion, and aiding and abetting breach of fiduciary duty. Contrary to both plaintiff’s position in opposition to the motion and the court’s conclusion, those causes of action did not accrue at the time the criminal proceeding terminated. The termination of a criminal proceeding is relevant for claims for malicious prosecution and legal malpractice arising out of a criminal proceeding (see Britt v Legal Aid Socy., 95 NY2d 443, 445-448 [2000]). For those claims, a plaintiff is required to make a showing of innocence, and thus the claims do not accrue until the plaintiff can assert the element of his or her innocence on the criminal charges (see id.). Plaintiff here does not need to assert her innocence on the criminal charges as an element of the causes of action for breach of contract, conversion, and breach of fiduciary duty (see generally Bratge v Simons, 167 AD3d 1458, 1459 [4th Dept 2018]).

The statute of limitations for a cause of action for breach of contract is six years (see CPLR 213 [2]). “[A] breach of contract cause of action accrues at the time of the breach,” even if the damage does not occur until later (Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, [*2]402 [1993]). Here, any breach occurred when the policy was issued in May 2006. The policy stated that the beneficiary was named in the application and referred the reader to an attached copy of the application, which listed the son’s girlfriend as a beneficiary. Inasmuch as plaintiff commenced this action more than six years after the policy was issued, the breach of contract cause of action is untimely. The fact that plaintiff alleged that she did not discover the breach until she made a claim under the policy in May 2011 does not compel a different outcome inasmuch as “the breach of contract cause[] of action accrued at the time of the breach, not on the date of discovery of the breach” (Yarbro v Wells Fargo Bank, N.A., 140 AD3d 668, 668 [1st Dept 2016]; see Deutsche Bank Natl. Trust Co. v Flagstar Capital Mkts., 32 NY3d 139, 145-146 [2018]; ACE Sec. Corp., Home Equity Loan Trust, Series 2006-SL2 v DB Structured Prods., Inc., 25 NY3d 581, 593-594 [2015]; Ely-Cruikshank Co., 81 NY2d at 404).

A cause of action for conversion has a three-year statute of limitations (see CPLR 214 [3]) and accrues on the date the conversion takes place (see DiMatteo v Cosentino, 71 AD3d 1430, 1431 [4th Dept 2010]). “A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession” (Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006]). Here, any conversion took place in May 2011, when plaintiff made a claim under the policy and allegedly received less than she was entitled to, and the cause of action is untimely inasmuch as plaintiff commenced this action more than three years later.

With respect to the breach of fiduciary duty causes of action, “where an allegation of fraud is essential to a breach of fiduciary duty claim, courts have applied a six-year statute of limitations under CPLR 213 (8)” (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139 [2009], rearg denied 12 NY3d 889 [2009]; see Monaghan v Ford Motor Co., 71 AD3d 848, 849-850 [2d Dept 2010]). Even assuming, arguendo, that the breach of fiduciary duty causes of action contain allegations of fraud that are essential to the claims, they are still untimely under CPLR 213 (8). The alleged fraudulent action occurred at the latest when the policy was issued in May 2006, and this action was commenced more than six years later and more than two years after May 2011, when plaintiff discovered the alleged fraudulent action.”

Singh v Pliskin, Rubano, Baum & Vitulli  2021 NY Slip Op 07019
Decided on December 15, 2021 Appellate Division, Second Department

“The plaintiff Roopnarine Singh is the majority shareholder of the plaintiff MSN Air Service, Inc. (hereinafter MSN). Edward A. Radburn is the minority shareholder of MSN. In 2009, Radburn commenced a proceeding pursuant to Business Corporation Law § 1104-a in the Supreme Court, Queens County, for the judicial dissolution of MSN (hereinafter the Queens action). Singh retained the defendants to represent him in the Queens action. On the advice of the defendants, Singh elected to purchase Radburn’s shares in MSN pursuant to Business Corporation Law § 1118(a). When Radburn repeatedly failed to appear for conferences or the valuation hearing, the defendants moved on Singh’s behalf to dismiss the Queens action with prejudice. The court “marked [the proceeding] off [the] calendar without prejudice.”

Thereafter, Radburn, individually and derivatively on behalf of MSN, commenced an action against Singh in the Supreme Court, Nassau County, alleging causes of action seeking an accounting and to recover damages for breach of contract, breach of fiduciary duty, and unjust enrichment (hereinafter the Nassau action). The court granted Radburn a preliminary injunction restraining Singh from taking certain actions with respect to MSN, and, after the defendants had withdrawn as counsel for Singh, appointed a temporary receiver for MSN. In September 2016, Singh and Radburn settled both the Queens and Nassau actions.

The plaintiffs then commenced this action alleging that the defendants committed legal malpractice by, inter alia, failing to prosecute the Queens action to completion prior to the commencement of the Nassau action in that, after the court marked the Queens action off the calendar, the defendants did not attempt to finalize Singh’s election to purchase Radburn’s shares [*2]in MSN. The complaint also alleged that the defendants were negligent in advising Singh to operate MSN without also advising him that absent the completion of his purchase of Radburn’s shares, the plaintiffs still had obligations to Radburn, including to pay him his contractually owed salary and benefits and his share of any distributions made by MSN. The defendants moved, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the legal malpractice cause of action. The plaintiffs opposed the motion. In an order entered April 19, 2019, the Supreme Court denied that branch of the defendants’ motion which was to dismiss the legal malpractice cause of action. The defendants appeal.”

“The complaint, as augmented by the affidavit of Singh submitted in opposition to the defendants’ motion to dismiss, sufficiently stated a cause of action for legal malpractice (see CPLR 3211[a][7]; Leon v Martinez, 84 NY2d 83, 87-88; Doe v Ascend Charter Schs., 181 AD3d 648, 649-650). Contrary to the defendants’ contention, at this preliminary stage of the litigation, they failed to conclusively demonstrate that the plaintiffs’ subsequent attorney had a sufficient opportunity to correct the defendants’ alleged negligence, such that they did not proximately cause any damages flowing from that negligence (see Gobindram v Ruskin Moscou Faltischek, P.C., 175 AD3d 586, 591). The defendants also failed to demonstrate that their actions were protected by the attorney judgment rule (see generally Rosner v Paley, 65 NY2d 736, 738; Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1505).

The documents submitted by the defendants do not utterly refute the factual allegations of the complaint and do not conclusively establish a defense to the plaintiffs’ legal malpractice claim as a matter of law (see CPLR 3211[a][1]; Cali v Maio, 189 AD3d 1337, 1338; Gorunkati v Baker Sanders, LLC, 179 AD3d 904, 906).”

In a short year end decision, no one wins a summary judgment decision.  This stand-off clearly favors plaintiff, which now enters the new year with a trial to be had.  In Security Plans, Inc. v Harter Secrest & Emery, LLP
2021 NY Slip Op 07382 Decided on December 23, 2021 Appellate Division, Fourth Department told everyone to get ready for a trial.

“Memorandum: Plaintiff commenced this legal malpractice action alleging that defendants were negligent with respect to their representation of plaintiff in certain litigation in federal court. Contrary to plaintiff’s contention on appeal, Supreme Court properly denied that part of its motion seeking summary judgment on liability. Plaintiff did not meet its initial burden of establishing that defendants “failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community” (Greene v Payne, Wood & Littlejohn , 197 AD2d 664, 666 [2d Dept 1993]; see Deitz v Kelleher & Flink , 232 AD2d 943, 944 [3d Dept 1996]). Likewise, contrary to defendants’ contention on cross appeal, the court properly denied their cross motion for summary judgment dismissing the amended complaint inasmuch as defendants failed to meet their initial burden (see generally Zuckerman v City of New York , 49 NY2d 557, 562 [1980]). We have reviewed plaintiff’s remaining contentions on appeal and defendants’ remaining contentions on cross appeal and conclude that none warrants reversal or modification of the order.”

Wilson v Tully Rinckey PLLC  2021 NY Slip Op 07341  Decided on December 23, 2021 Appellate Division, Third Department is a fairly straight-forward affirmance of Supreme Court’s denial of a CPLR 3211 motion.    Here are the simple reasons why the legal malpractice claims were not dismissed.  Plaintiff sued for employment discrimination and thought that part of the settlement guaranteed her a job with the County.  It did not.  She thought she was paying a 1/3 contingent fee.  It seems she paid more.

“The settlement agreement, however, did not state that plaintiff may be employed [*2]with the County. Rather, it provided that plaintiff “will be offered a position” with the County. Plaintiff averred that she believed that she was going to receive a job offer from the County and alleged that she relied on the representation that she would be employed with the County. She further alleged that defendant did not obtain the signature of a County representative to ensure that she would receive future employment with the County and that, absent such employment, her settlement compensation was grossly deficient. Plaintiff also averred that she was never counseled about how to protect her right to future employment with the County and alleged that, after she raised questions about the settlement agreement, an attorney with defendant told her that “the law firm was ‘done’ working on her case” and that she had to sign the agreement. Accepting plaintiff’s averments and allegations as true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Berry v Ambulance Serv. of Fulton County, Inc., 39 AD3d 1123, 1124 [2007]) and inasmuch as the documentary evidence submitted by defendant does not conclusively refute them (see New York State Workers’ Compensation Bd. v Program Risk Mgt., Inc., 150 AD3d 1589, 1594 [2017]), Supreme Court correctly denied that part of the motion seeking dismissal of the legal malpractice claim (see Snyder v Brown Chiari, LLP, 116 AD3d 1116, 1117 [2014]; Soule v Lozada, 232 AD2d 825, 825 [1996]).[FN1]

Regarding the breach of contract claim, plaintiff alleged in the complaint that the retainer agreement between the parties provided that defendant would receive 33⅓% of any amount received by plaintiff as compensation. There is no dispute that defendant received $25,000 as payment for legal fees. The record, however, does not conclusively establish how this amount was calculated or how it represented 33⅓% of plaintiff’s total compensation. Taking into account that plaintiff received $10,000 as monetary compensation from the Town and other incidental benefits and according plaintiff the benefit of every possible favorable inference, defendant is not entitled to dismissal of the breach of contract claim at this juncture (see Dubon v Drexel, 195 AD3d 991, 993 [2021]; Dubrow v Herman & Beinin, 157 AD3d 620, 621 [2018]). Finally, defendant’s reliance on the voluntary payment doctrine is unavailing.”

As a trial document, Outeda v Asensio  2021 NY Slip Op 51069(U) [73 Misc 3d 136(A)] Decided on November 5, 2021 Appellate Term, Second Department is a little surprising.  It’s an attorney fee trial over $ 10,000.  The decision catalogues what went wrong, some of it easily avoidable.  Read both dissents in the full version.

“Plaintiff, who is an attorney, commenced this action seeking to recover the principal sum of $10,280, which, she alleged in the complaint, is the balance due for legal fees and disbursements based upon two separate retainer agreements she entered into with defendant: the first, to review materials, including “the court’s file,” concerning defendant’s mother’s legal guardian; and the second, to represent defendant in petitioning the Supreme Court, Queens County, pursuant to Mental Hygiene Law article 81, to remove the legal guardian for the person and property of defendant’s mother and to have defendant appointed to serve in that capacity instead. Defendant counterclaimed for $5,000, alleging legal malpractice and a failure to provide services.

At a nonjury trial, plaintiff testified that, after doing “a substantial amount of work,” she [*2]prepared a petition, which she ultimately did not file because she discovered that a petition had already been filed on defendant’s behalf by defendant’s prior attorney. Instead, she filed a notice of appearance. Plaintiff asserted that she then attended court conferences, communicated with the court-appointed guardian for defendant’s mother, and enabled visitation between defendant and her mother. Plaintiff testified that she had agreed to work for an hourly rate of $375. Plaintiff stated the number of hours of work she had performed and billed defendant for, which amount, together with $355 in costs and disbursements, totaled the sum of $15,280. Plaintiff noted that defendant had paid her $5,000, leaving a balance due of $10,280.

Defendant testified that plaintiff had justified her fees by claiming that she was an expert in the field of elder law, when in fact she was not, and asserted that she was entitled to a refund of the money she had paid to plaintiff because plaintiff had done nothing for her.

While no documents were formally admitted into evidence, in its findings dictated on the record after the trial, the Civil Court indicated that it had considered documentary evidence that had been presented by both parties. The court questioned whether plaintiff had proven she was an attorney, but found that even if she was, “she did not establish that she performed the legal services for which she was retained.” The court dismissed the complaint and awarded defendant a judgment of $5,000 on her counterclaim.

It was the attorney plaintiff’s obligation to make a record and move documents into evidence. However, given that the court considered various documents without setting forth on the record the contents of the documents it reviewed or otherwise marking the documents it relied upon in reaching its conclusion, and as the record on appeal is inadequate to allow for proper review without these documents, the judgment must be reversed and the matter remitted to the Civil Court for a new trial.

With respect to the dissent, it should be pointed out that, in findings that appear to have been dictated extemporaneously on the record after the parties left the courtroom, the judge, while pondering the issue, never found that plaintiff was not an admitted attorney. In its findings, the court ultimately stated in part, “Despite this, Ms. Outeda still is counsel and has an obligation to her client, assuming she is an attorney admitted to practice in New York, she had an obligation to her client to proceed and file the petition or once she filed the Notice of Appearance, to file an Order to Show Cause to be relieved as counsel. None of this ever happened.”

Accordingly, the judgment is reversed and the action is remitted to the Civil Court for a new trial.”

A frequently recurring situation in legal malpractice cases is that plaintiff retains lawfirm in a medical malpractice case, and very shortly before the statute of limitations date, the lawfirm bows out. They quit, often because they have been unwilling or unable to fund an expert, whose review is necessary prior to filing the complaint.  Legal malpractice?Buxton v Zukoff  2021 NY Slip Op 06942 Decided on December 14, 2021 Appellate Division, First Department sheds some light in a failure to file the notice of claim/late notice of claim setting.

“The injured plaintiff claims that defendants Seth Zukoff and his law firm (together, Zukoff) failed to timely file a notice of claim against the appropriate parties regarding his motor vehicle accident involving a Nassau County public bus on November 7, 2012. Pursuant to General Municipal Law § 50-e, the notice of claim should have been served within 90 days, or by February 5, 2013. On July 16, 2013, plaintiffs discharged Zukoff as counsel and retained third-party defendant R&L. Two months later, R&L discovered that Zukoff had failed to timely file the notice of claim and formally terminated its legal representation of plaintiffs in person and via written letter. Pursuant to General Municipal Law § 50-e (5), plaintiffs had to seek leave to serve a late notice of claim within one year and 90 days of the accident, i.e., February 5, 2014. That deadline passed without plaintiffs retaining new counsel or any legal action taken. Plaintiffs then retained a third legal counsel, which filed a personal injury action that was ultimately dismissed for failure to serve a timely notice of claim.

Zukoff’s legal malpractice claim against R&L must be dismissed. R&L established prima facie that it provided the advice expected of legal counsel exercising ordinary reasonable skill and knowledge and that it did not breach any duty toward plaintiffs (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49-50 [2015]). Moreover, it terminated its attorney-client relationship through a September 11, 2013 letter that was received by plaintiffs approximately five months before the General Municipal Law § 50-e deadline, and such notice provided sufficient time for plaintiffs to retain successor counsel and pursue their claim (see Cabrera v Collazo, 115 AD3d 147, 151 [1st Dept 2014]). R&L also took steps to avoid any negligence by expressly advising plaintiffs that a limitations period existed, using layman’s language to explain the last day to commence a lawsuit, and urging them to contact counsel immediately to ensure the action was timely filed and to avoid jeopardizing their rights or allowing any legal deadlines to expire (see Mortenson v Shea, 62 AD3d 414, 415 [1st Dept 2009]; see also Clissuras v City of New York, 131 AD2d 717, 718-719 [2d Dept 1987], appeal dismissed 70 NY2d 795 [1987]). In opposition, Zukoff failed to raise an issue of fact with respect to its claim that R&L breached its duty toward plaintiffs.

As R&L did not owe a duty to plaintiffs or Zukoff to seek leave to file a late notice of claim after it terminated the attorney-client relationship[*2], Zukoff’s indemnification and contribution claims must also be dismissed against it.”