Trusts and estates law and legal malpractice cases often intertwine.  A unique and singular thread runs through them.  Death is almost always a part of the equation, and often, there is a question of whether the attorney represented decedent or beneficiary.  Beyond the simple question of death, there is almost always a long gestation period between the act [creating a trust, writing a will, suggesting a certain estate vehicle] and the damage. 

Here, in  DROZ, v. KARL, III, ESQ.; PARAVATI, KARL, GREEN & DeBELLA; PATRICK J. HART, CPA; and MOORE & HART, CPA, 6:09-CV-920;UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK; 2010 U.S. Dist. LEXIS 93326;September 8, 2010, Decided plaintiff loses on each of the two horns.
 

"In order to sustain a legal malpractice claim, a plaintiff must show: (1) the existence of an attorney-client relationship, (2) negligence, (3) which is the proximate cause of a loss, and (4) actual damages. See Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (citing Prudential Ins. Co. v. Dewey, Ballantine, Bushby, Palmer & Wood, 170 A.D.2d 108, 114, 573 N.Y.S.2d 981 (N.Y. App. Div. 1st Dep’t 1991), aff’d, 80 N.Y.2d 377, 605 N.E.2d 318, 590 N.Y.S.2d 831 (1992)); see also Moran v. Hurst, 32 A.D.3d 909, 910, 822 N.Y.S.2d 564 (N.Y. App. Div. 2d Dep’t 2006) ("To recover damages for legal malpractice, a plaintiff must prove, inter alia, the existence of an attorney-client relationship."). While the payment of a fee or existence of a formal retainer agreement may be indicators of an attorney-client relationship, such factors are not dispositive. See Moran, 32 A.D.3d at 911. An attorney-client relationship may instead arise by words and actions of the parties; however, one party’s unilateral belief, standing alone, does not confer upon him or her the status of a client. Id."
 

"While the correspondence Droz has presented might otherwise raise a triable issue of fact, these assertions are insufficient in light of his own prior sworn affidavit. "[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony." Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (citing Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)). A party does not show a triable issue of fact merely by submitting an affidavit that disputes his own prior sworn testimony. See, e.g., Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991). However, a material issue of fact may be exposed by the party’s subsequent sworn testimony that adds to, or explains, but does not merely contradict, his prior testimony. See Villante v. Dep’t of Corr. of N.Y.C., 786 F.2d 516, 522 (2d Cir. 1986). [*10] Plaintiff has not presented any testimony which adds to, or explains his prior affidavit demonstrating his understanding that Karl represented Scheidelman."
 

"Under New York State law, the statute of limitations for a legal malpractice action is three years. N.Y. C.P.L.R. 214(6). Generally, the action accrues "when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court." McCoy v. Feinman, 99 N.Y.2d 295, 301, 785 N.E.2d 714, 755 N.Y.S.2d 693 (2002) (citing Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541, 644 N.E.2d 1009, 620 N.Y.S.2d 318 (1994)). In most cases, the accrual date is the day an actionable injury occurs, even if the aggrieved party is ignorant of the wrong or injury at that time. [*14] McCoy, 99 N.Y.2d at 301. "What is important is when the malpractice was committed, not when the client discovered it." Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 750 N.E.2d 67, 726 N.Y.S.2d 365 (2001) (citing Glamm v. Allen, 57 N.Y.2d 87, 95, 439 N.E.2d 390, 453 N.Y.S.2d 674 (1982))."
 

"On these facts, the three-year statute of limitations began to run on the date of the alleged malpractice in 1994, and Droz would have had until 1997 to bring an action. The continuous representation doctrine does not apply to toll the statute of limitations because the sporadic communications between plaintiff and Karl relating to the Trust, over a thirteen year period, do not rise to the level required by the continuous representation doctrine. See Droz Aff. ¶ 33. Further, the "mutual understanding" requirement articulated in McCoy has not been met. Defendants contend after the Trust’s execution in 1994, there was no mutual understanding that further representation with respect to the Trust would be required, and that neither plaintiff nor Karl appreciated that there might be any issue with the manner in which the Trust was drafted until 2007, when the Foundation began investigating the basis for its Surrogate Court’s action.

The continuous representation doctrine is inapplicable, and thus the ordinary three-year statute of limitations applies. As there are no issues [*16] of material fact as to the accrual date of the action, the plaintiff’s legal malpractice claim is also barred by the statute of limitations."