We’ve written over and over that the statute of limitations in legal malpractice is 3 years pursuant to CPLR 214(6) and aside from continuing representation, there is no possible extension.  There is no discovery statute of limitations, and the statute is commenced when the mistake is made.  We have been absolutely solid on that until we read Herrick Feinstein LLP v Baram  2015 NY Slip Op 07552 Decided on October 15, 2015 Appellate Division, First Department.  Our world view shifted and sharply.

There are many attorney retention agreements with an arbitration clause.  Herrick uses one, and it can lead to an indeterminate statute of limitations, to be decided by the arbitrators.  Since their decision is given great deference, there is absolutely no certainty in an FAA arbitration setting.

“The IAS court correctly determined that the legal malpractice arbitration commenced by respondents was barred by the statute of limitations, having been commenced more than three years after the representation ended (CPLR 214[6]). The arbitration agreement did not implicate interstate commerce and the FAA does not apply, therefore respondents’ reliance on Cusimano v Schnurr (40 Misc 3d 1208[A] [Sup Ct, NY County 2013], revd 120 AD3d 142 [2014], lv granted 24 NY3d 909 [2014]) is unavailing.”