When does Continuous representation end?  Sometimes a matter of days can be decisive.  In Alizio v Ruskin Moscou Faltischek, P.C.  2015 NY Slip Op 01909  Decided on March 11, 2015 Appellate Division, Second Department it was the difference between April 20 and May 10.  If continuous representation ended on April 20 the complaint was late.  If it ended on May 10, it was timely.

“Causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies” (Macaluso v Del Col, 95 AD3d 959, 960; see Louzoun v Kroll Moss & Kroll, LLP, 113 AD3d 600, 601). The continuous representation doctrine tolls the statute of limitations where “there is 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; see DeStaso v Condon Resnick, LLP, 90 AD3d 809, 812). Here, there is no real dispute that, pursuant to the doctrine of continuous representation, the three-year statute of limitations pertaining to the defendant’s alleged legal malpractice in 2008 in Action Nos. 1 and 2 was tolled during the time period when the defendant continued to represent the plaintiff in those actions (see McCoy v Feinman, 99 NY2d at 306; DeStaso v Condon Resnick, LLP, 90 AD3d at 812). At issue is when that representation and tolling ceased and the three-year statute of limitations period began.

The defendant met its prima facie burden by establishing that the statute of limitations expired on April 20, 2013, three years after the consents were executed by the plaintiff, the defendant, and new counsel. The defendant took no acts on behalf of the plaintiff in the actions after the consents were signed on April 20, 2010. The parties’ execution of the consents on that date in all of the actions, including Action Nos. 1 and 2, demonstrated the end of the defendant’s representation of the plaintiff and the parties’ mutual understanding that any future legal representation in the actions would be undertaken by the plaintiff’s new counsel (see McCoy v Feinman, 99 NY2d at 306; Landow v Snow Becker Krauss, P.C., 111 AD3d at 796). Therefore, the defendant met its prima facie burden of establishing that the three-year statute of limitations period for commencing a cause of action alleging legal malpractice had expired at the time the plaintiff commenced this action on May 10, 2013.

Upon that showing, the burden then shifted to the plaintiff to raise a question of fact as to whether the tolling ceased on a date after April 20, 2010, such that the causes of action alleging legal malpractice were timely commenced (see Landow v Snow Becker Krauss, P.C., 111 AD3d at 796-797; Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d at 768-769). Here, the plaintiff failed to do so. The plaintiff contends that the statute of limitations did not begin running until May 12, 2010, when the May 2010 revised consent in Action No. 1 was executed. However, the plaintiff failed raise a question of fact as to whether the attorney-client relationship between the defendant and the plaintiff continued in the actions after April 20, 2010, when the consents were executed (see Farage v Ehrenberg, 124 AD3d 159; McCoy v Feinman, 99 NY2d at 306; Landow v Snow Becker Krauss, P.C., 111 AD3d at 796). The May 2010 revised consent, which was prepared and distributed by new counsel, not the defendant, and related only to Action No. 1, constituted “a mere memorialization of what had already occurred” in April 2010 (Farage v Ehrenberg, 124 AD3d at 168).”