Legal Malpractice claims accrue at the time a mistake is made. The Statute of limitations in legal malpractice, three years, is a difficult and high barrier to overcome. Continuous representation may toll the running of the statute, but social policy has set a number of elements required for continuous representation to be permitted. Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP 2017 NY Slip Op 02688 [149 AD3d 788] April 5, 2017 Appellate Division, Second Department gives a cogent explanation.
“The statute of limitations for the cause of action alleging legal malpractice is three years (see CPLR 214 ; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735 ). The cause of action to recover damages for professional negligence, which arose from the same facts as the legal malpractice claim and did not allege distinct damages, was likewise governed by the three-year statute of limitations (see Scott v Fields, 85 AD3d 756 ; see also Farage v Ehrenberg, 124 AD3d 159, 159 ). A claim to recover damages for legal malpractice accrues when the malpractice is committed (see Shumsky v Eisenstein, 96 NY2d 164, 166 ; Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 144 AD3d 956, 957 ). “However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates” (Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 144 AD3d at 957; see Shumsky v Eisenstein, 96 NY2d at 164; Pellati v Lite & Lite, 290 AD2d 544, 545 ). For the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” (Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506-507 ; see Pellati v Lite & Lite, 290 AD2d at 545).
Here, the defendant satisfied its initial burden by demonstrating, prima facie, that the alleged legal malpractice occurred more than three years before this action was commenced in March 2015 (see Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017 ). In opposition, however, the plaintiffs raised a question of fact as to whether the applicable statute of limitations was tolled by the continuous representation doctrine. The plaintiffs submitted Andrew Stein’s affidavit, in which he averred that he met with members of the defendant on July 26, 2012, to determine how to rectify the pension liability issue. Andrew indicated that he was not satisfied with their recommendations concerning how to rectify the issue and directed them to formulate another idea. Andrew’s affidavit was sufficient to raise a question of fact as to whether the defendant engaged in a course of continuous representation intended to rectify or mitigate the initial act of alleged malpractice (see Melnick v Farrell, 128 AD3d 1371, 1372 ; DeStaso v Condon Resnick, LLP, 90 AD3d 809, 812-813 ; Gravel v Cicola, 297 AD2d 620, 621 ).”