Schneider v. Finmann, 15 NY3d 306 (2010) was a sea-change in the law of legal malpractice.  For the first time, an estate had standing to litigate over negligence in the representation of the estate and of decedent.  Naturally, the usual rules of limitation still apply.  Here, in Allmen v Fox Rothschild LLP; 2012 NY Slip Op 30244(U); January 31, 2012; Sup Ct, NY County; Docket Number: 101964/11; Judge: Manuel J. Mendez we see that some of the claims are too old, and some are timely.

"In or around 2005, defendant formulated Decedent‘s estate plan, and drafted Decedent‘s Last Will and Testament (the “Wlll”), which was executed on July 27,2005. Plaintiff alleges that certain provisions of the Will, including certain tax allocation clauses drafted by defendant, needlessly and negligently exposed the Estate to a danger of a significantly Increased tax burden upon Decedent’s death. None of the parties allege that any additional services were provided to Decedent by defendant after the Will was executed. 

Decedent died on June 16, 2006. On June 27, 2006, plaintiff retained defendant to represent her as executor of the Estate through the execution of a letter of engagement (the “Letter of Engagement”). The Letter of Engagement, which set forth the terms of the representation, was signed by both parties. On or about September 17, 2007, defendant prepared and filed on behalf of plaintiff, as executor, the Federal Estate tax return and the New York State tax return (collectively, the “Tax Returns”) for Decedent’s Estate. On or about June of 2008, the IRS selected the Estate for a tax audit (the “Audit”). Defendant represented the Estate in connection with the Audit. Plaintiff alleges that defendant was negligent In their preparation of the Tax Returns which resulted In an Increased tax burden, interest, and tax penalties for the Estate.

Plaintiff Initiated an action for legal malpractice and excessive billing In connection with   defendant’s rendering of legal services to Decedent and in connection with defendant’s rendering of legal services to the plaintiff directly. Plaintiff has standing to Initiate the action on behalf of the Estate under EPTL section II -3 .2(b) due to her designation as executor for the Estate. Estate of
Schneider v. Finmann, 15 N.Y.3d 306,907 N.Y.S.2d I 19, (2010). A claim for attorney malpractice accrues when the malpractice Is committed, and must be Interposed within three years thereafter. Shumsky v Elsensteln, 96 N.Y.2d 164,750 N.E.2d 67,726 N.Y.S.2d 365 (2001). The date at
which the client discovers the malpractice Is Irrelevant. Ackerman v. Prlce Waterhouse, 84 N.Y.2d 535,620 N.Y.S.2d 318, (1994). In this motion, defendant [* 2] is seeking to dismiss under CPLR 321I (a )(5) all allegations In plaintiff s amended complaint that are based on any conduct or omission alleged to have taken place In 2005, that is, defendant’s representation of Decedent in the drafting of the Will. Defendant Is asserting that the statute of limitations has expired.

The execution of the Letter of Engagement Is objective proof that none of the parties had an  understanding of continuous representation. In the Engagement Letter, plaintiff retained defendant to represent her as executor of the Estate. The titles outlined In the Engagement Letter are distinct from the defendant’s duties In drafting the Will. It was not until the Audit, two years after
Decedent’s death and the execution of the Engagement Letter, that there was any Indication that there might be a problem with the Will. “Given [the Estate’s] lack of awareness of a condition or problem warranting further representation and the fact that no course of representation was alleged, the purpose underlying the continuous representation doctrine would not be sewed by Its application here.” Wllliamson ex re/. Llpper Convertlbles, L. P. v. Pr/Waterhouse Coopers
LLP, supra. “the nature and scope of the parties’ retainer agreement (engagement) play a key role In determining whether ‘continuous representation’ was contemplated by the parties. Id. The act of executing the Engagement Letter, and the terms of representation contained therein, contradict the bare legal assertion that the doctrine of continuous representation would toll the statute of limitations following Decedent’s death. Without the application of the doctrine of continuous representation to toll the statute of limitations beyond Decedent’s death, the statute of limitations on malpractice claims on any conduct or omission alleged to have taken place In
2006, that is, defendant’s representation of Decedent in the drafting of the Wlll would have expired In June of 2009, prior to the execution of the Tolling Agreement."