There are two alternative paths in a legal malpractice statute of limitations argument on when the statute commences.  The two choices are at the giving of the challenged advice or when all the elements of a cause of action exist such that a claim may properly be brought.  Obviously the second theory may yield later dates and defeat summary judgment motions on the statute.  What happens when a litigant fails to argue the second theory?

Estate of Smulewicz v Meltzer, Lippe, Goldstein & Breitstone, LLP 2017 NY Slip Op 30483(U) March 15, 2017  Supreme Court, New York County  Docket Number: 152264/16
Judge: Barbara Jaffe discusses not one but two tolls of the statute:  continuous representation and insanity.  However, what might have been the winning argument was not pled.

“Sometime in early 2008, Renate Smulewicz engaged defendant Jaw firm to devise an “estate planning and tax reduction plan.” By Jetter dated February 6, 2008, defendant provided Smulewicz with a sumrµary of the plan, whereby it created an LLC to which Smulewicz deeded her apartment, and creat~d a trust to which she both gifted and sold her interest in the LLC in exchange for a $2,340,000 promissory note. (NYSCEF 12). By invoice addressed to Smulewicz on the same day, defendant lists the following pertinent services rendered: “Gift by [Smulewicz] often (10%) percent interest in [the LLC] to THE SMULEWICZ FAMILY TRUST by Assignment Agreement; … [Smulewicz] selling ninety (90%) interest in [the LLC] to THE SMULEWICZ FAMILY TRUST.” (NYSCEF 13). ”

“An action for legal malpractice, “regardless of whether the underlying theory is based in contract or tort,” must be commenced within three years of its accrual. (CPLR 214[6]). A claim of legal malpractice accrues “when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court.” The date of accrual depends on when the defendant committed the malpractice, not when his or her client discovered it. (McCoy v Feinman, 99 NY2d 295, 391 [2002]; Hahn v Dewey & LeBoeuf Liquidation Trust, 143 AD3d 547, 547 [Is1 Dept2016]; Landow v Snow Becker Krauss, P.C., 111 AD3d 795, 767 [2d Dept 2013]). However, the three-year statute may be tolled when the representation is continuous, and a plaintiff may avoid dismissal by showing that there exists an issue of fact as to whether the representation was continuous. (Sendar Dev. Co., LLC v CMA Design Studio P. C., 68 AD3d 500, 503 [P1 Dept 2009]; 860 F(fth Ave. Corp. v Superstructures-Engrs. & Architects, 15 AD3d 213, 213 [ P1 Dept 2005]). The continuing representation must “pertain[] to the matter in which the attorney committed the alleged malpractice,” and the attorney and client must have reasonably intended for the professional relationship to continue past the time that the cause of action accrued. (Shumsky v Eisenstein, 96 NY2d 164, 167 [2001]; see Williams v Pricewaterhouse Coopers LLP, 9 NY3d 1, 10 [2007]). The provision of subsequent legal services pertaining to “discrete and severable transactions,” however, does not toll the statute. (Parlato v Equitable L(fe Assur. Socy. of US., 299 AD2d 108, 114-.115 [Pt Dept 2002], Iv denied99 NY2d 508 [2003]; see Gristede v Morris & McVeigh, 192 AD2d 424, 425 [1st Dept 1993]). The statute of limitations may also be tolled if, at the time the cause of action accrues, the plaintiff is “under a disability because of infancy or insanity … [and] the time within which the action must be commenced shall be extended to three years after the disability ceases or the person under the disability dies.” (CPLR 208). The toll applies only to those “who are unable to protect their legal rights because of an over-all inability to function in society.” (McCarthy v Volkswagen of Am., Inc., 55 NY2d 543, 548 [1982]; Rodriguez v Mount Sinai Ho~p., 96 AD3d 534, 535 [l’t Dept 2012]).  ”

“While not raised by plaintiffs, the September 2015 letter supports an inference that Smulewicz’s estate was not assessed the $830,000 tax until sometime after her death in April 2014, and thus, while the underlying malpractice occurred in February 2008, the damages were not discernible until the tax was assessed. Even if the estate was assessed immediately, in April 2014, having commenced the action within three years thereof, plaintiffs would have been timely in commencing it. (See generally Kronos, Inc. v A VX Corp., 81 NY2d 90, 94 [ 1993] [“The Statute of Limitations does not run until there is a legal right to relief. Stated another way,· accrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint.”]; see also La Bello v Albany Med. Ctr. Hosp., 85 NY2d 701, 706 [1995] [same]; Bonded WaterproofingServ., Inc. vAnderson-BernardAgency, Inc., 86 AD3d 527, 530 [2d Dept 2011] [negligence claim against insurer did not accrue until plaintiff sustained damages, i.e., where plaintiffs request for coverage was rejected]; McCoy v Feinman, 291 AD2d 799, 803 [41 h Dept 2002] [Hayes, J. & Scudder, J., dissenting], affd99 NY2d 295 [“Plaintiff does not contend that the cause of action accrued on the date on which she discovered the malpractice, as suggested by the majority; rather, she contends only that it accrued when she was able to plead the elements of the cause of action.”]). Nevertheless, as plaintiffs do not raise this issue, and in light of contrary authority (see Ackerman v Price Waterhouse, 84 NY2d 535, 541-542 [ 1994] [consistent with policy promoting “fairness to defendant and society., s interest in adjudication of viable claims not subject to the vagaries of time and memory,” malpractice claim accrued when plaintiff received and relied on tax advice, not when IRS assessed deficiency]), I adhere to the finding that the cause of action for malpractice accrued on February 6, 2008, and is thus, untimely. ”