The statute of limitations for legal malpractice is three years under CPLR 214(6). That statute may be tolled during the period of continuous representation. Continuous representation, for social policy reasons, tolls the running of the statute so that a client is not required to sue the attorney while the representation continues on, allowing for the attorney to perhaps fix the mistake. There must be a continuing relationship of trust and confidence between the client and the attorney with a common understanding that more work is expected in the case.
So, when does the continuing representation end? Often, on the day that a substitution and change of counsel is filed. Sometimes the date of the end of the relationship is not so clear. O.K. Petroleum Intl., Ltd. v Palmieri & Castiglione, LLP 2016 NY Slip Op 00945 Decided on February 10, 2016 Appellate Division, Second Department is a case where plaintiff missed the mark by three days. Just as in Aaron v. Roemer, filing of the consent to change attorney (in Aaron issuing of the order granting withdrawal) was not the operative date. That date was 9 days earlier.
“Contrary to the plaintiffs’ contentions, the Supreme Court properly granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action to recover damages for legal malpractice as untimely (see Farage v Ehrenberg, 124 AD3d 159, 164; Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d 1037, 1038; Rupolo v Fish, 87 AD3d 684, 685; Piliero v Adler & Stavros, 282 AD2d 511, 512). The defendant demonstrated that the alleged legal malpractice occurred more than three years before this action was commenced on June 11, 2012, through evidence showing that the plaintiffs had substituted counsel by June 3, 2009 (see CPLR 214[6]; Rupolo v Fish, 87 AD3d at 685). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the statute of limitations was tolled by the continuous representation doctrine until the formal notice of substitution was executed on June 12, 2009 (see Farage v Ehrenberg, 124 AD3d at 166; Rupolo v Fish,87 AD3d at 685).