Town of Amherst hires attorneys to represent them in the termination of an employee. Time goes by  Things go wrong.  Attorneys are hired again (rehired?) to continue to represent the Town. Time goes by.  Attorneys are once again hired.  When the case is finally lost, the Town sues the attorneys.  Continuous representation?

Town of Amherst v Weiss  2014 NY Slip Op 06411  Decided on September 26, 2014  Appellate Division, Fourth Department  says, Yep!. 

"It is well settled that a cause of action for legal malpractice accrues on the date when the malpractice was committed, regardless of the date on which the malpractice is actually discovered (see Shumsky v Eisenstein, 96 NY2d 164, 166; Ackerman v Price Waterhouse, 84 NY2d 535, 541; Glamm v Allen, 57 NY2d 87, 94). The parties agree that the alleged malpractice was committed on June 26, 2001, the date the hearing began before the improperly appointed Hearing Officer. The statute of limitations for legal malpractice is three years (see CPLR 214 [6]) and, therefore, the statute expired on June 26, 2004 unless it was tolled. We conclude that [*2]defendants met their initial burden of establishing that the action was commenced after the statute of limitations had expired (see International Electron Devices [USA] LLC v Menter, Rudin & Trivelpiece, P.C., 71 AD3d 1512, 1512). "The burden then shifted to [the Town] to raise a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine" (id.; see Priola v Fallon, 117 AD3d 1489, 1489-1490; but see 730 J & J, LLC v Polizzotto & Polizzotto, Esqs., 69 AD3d 704, 705).

We conclude that the Town raised a triable issue of fact whether there were "clear indicia of an ongoing, continuous, developing, and depend[e]nt relationship between the [Town] and [defendants,] which . . . include[d] an attempt by [defendants] to rectify an alleged act of malpractice" (Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506-507; see International Electron Devices [USA], LLC, 71 AD3d at 1512-1513). Contrary to defendants’ contentions, the Town raised triable issues of fact whether the continuing representation "pertain[ed] specifically to the matter in which [defendants] committed the alleged malpractice" (Shumsky, 96 NY2d at 168; see International Electron Devices [USA], LLC, 71 AD3d at 1512-1513), and whether there was "a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim" (McCoy v Feinman, 99 NY2d 295, 306).

The Town first hired Weiss in early 2001 to investigate the possibility of Section 75 charges against one of the Town’s employees. Weiss hired Gradl to assist him. From that point on, Weiss and Gradl performed legal work on behalf of the Town related to the Section 75 proceeding. They drafted the Section 75 charges and amended charges, presented evidence at the improperly commenced Section 75 hearing, prepared the resolution of the Town Board terminating the employee, and responded to the employee’s legal challenge to the termination. When it appeared that a second hearing was required, the Town Board resolved to appoint Weiss "and associates . . . to prosecute" the Section 75 charges and amended charges against the employee, i.e., to correct the legal error resulting in the need to nullify the first hearing and the initial determination terminating the employee. Defendants performed legal work on behalf of the Town by prosecuting the Section 75 charges and amended charges at a second hearing and by preparing the second resolution of the Town Board terminating the employee. When the employee challenged that termination, the Town Board resolved to retain Weiss’s firm to represent the Town at a potential hearing pursuant to General Municipal Law § 50-h and "to defend the Town Board’s decision" in an anticipated CPLR article 78 proceeding to be brought by the terminated employee.

Although defendants contended that their representation was not continuous, as evidenced by the fact that there were three separate and distinct actions by the Town to retain them and numerous gaps in their representation of the Town, we conclude that the Town nevertheless raised triable issues of fact concerning continuous representation. It is well established that "[a]n attorney-client relationship may exist in the absence of a formal retainer agreement" (Swalg Dev. Corp. v Gaines, 274 AD2d 385, 386; see Terio v Spodek, 63 AD3d 719, 721). Instead, such a relationship is formed by "an explicit undertaking to perform a specific task" (Terio, 63 AD2d at 721). Here, while there were three separate and distinct retainer agreements, we conclude that there are triable issues of fact whether defendants were retained for separate and distinct legal proceedings or, rather, "ongoing and developing phases of the [same] litigation" (Muller v Sturman, 79 AD2d 482, 485, citing Siegel v Kranis, 29 AD2d 477, 480-481). We cannot say as a matter of law that all of defendants’ acts "were not interrelated so that representation on [the second Section 75 hearing and the subsequent CPLR article 78 proceeding were] not part of a continuing, interconnected representation" to perform the specific task of terminating a Town employee (Deep v Boies, 53 AD3d 948, 952). Inasmuch as "[a] question of fact exists on this issue, . . . summary judgment is inappropriate" (id.).

We further conclude that there are triable issues of fact whether the gaps in the legal services that defendants performed for the Town were "merely . . . period[s] absent expectations, rather than . . . period[s] when representation formally ended" (Red Zone LLC v Cadwalader, Wickersham & Taft LLP, 2013 NY Slip Op 23468, affd 118 AD3d 581, 582). Here, as in Red Zone, the Town "immediately return[ed] to [defendants] . . . once an issue arising from [the alleged] malpractice [was] detected" (id.; see N & S Supply v Simmons, 305 AD2d 648, 649-650)"