The statute of limitations is a significant issue for many litigants.  There is a delay or lapse time between when a mistake is made and when a legal malpractice case is commenced.  In some cases, plaintiffs wait to see whether a mistake can be fixed; sometimes new counsel don’t magically appear right away and there is once again, delay.  How does this all affect the commencement of the statute of limitations?

Mazario v Snitow Kanfer Holtzer & Millus, LLP  2018 NY Slip Op 31024(U)  May 24, 2018
Supreme Court, New York County  Docket Number: 152742/2017  Judge: Barbara Jaffe is an example of the subjective method of determining the onset of the statute of limitations.  She relies on the “lack of trust and confidence” line of cases rather than an objective “when was the consent to change attorneys filed” line of cases.

“In support of their defense based on the three-year statute of limitations for malpractice
actions, Milius relies on an email dated March 6, 2014, whereby PPL requested its legal file from
Milius (NYSCEF 19, 69), and on an email dated August 15, 2013, by which he advised Mazario
that it was “impossible” to continue to represent him and that he intended to move to withdraw
from the case, and recommended that Mazario obtain new counsel (NYSCEF 18). Defendants
thus argue that the action is time-barred, as it was commenced on March 23, 2017, which is more
than three years after the latest date on which the action accrued, March 6, 2014. (NYSCEF 23,
Plaintiffs maintain that Milius continued to represent PPL until his motion to be relieved
was granted on April 22, 2014 (NYSCEF 10). They rely on Millus’s promises to provide
guidanc_e and assistance to any new counsel ret~ined by PPL and his delay in seeking to
withdraw from the action, and observe that they did not hire new counsel until after Milius was
relieved as counsel. They also complain of being deprived of the discovery required to establish
whether the relationship between PPL and Milius continued beyond March 6. Moreover, they
argue, the purported documentary evidence offered by defendants fail absent an affidavit of one
with personal knowledge of the pertinent events. (NYSCEF 62)”

” Here, defendants meet their initial burden by offering undeniable evidentiary proof that
the malpractice claim accrued, at the latest, on March 6, 2014, more than three years before this
action commenced, when PPL requested its legal file, thereby demonstrating a lack of trust and confidence in Millus. (See Farage, 124 AD3d at 168 [on motion for summary judgment,
retrieval of litigation file marked end of representation, and consent to change attorney form
executed later was “mere ministerial task” to inform others that representation ended]; Aseef. 106
AD3d at 1038 [on motion to dismiss claim as time-barred, trial court correctly concluded
relationship necessary to invoke continuous representation ceased to exist when plaintiff
surreptitiously removed his file from attorney’s office]).

While the order relieving Milius as counsel formalized the end of the attorney-client
relationship, it is not dispositive of when the representation ceased. (See Aaron v Roemer.
Waif ens & Mineaux. LLP, 272 AD2d 752, 755 [3d Dept 2000], Iv dismissed 96 NY2d 730 [2001]
[as plaintiff, in letter to court, did not contest attorney’s withdrawal and described relationship as
fractured, date of letter, as opposed to date on which withdrawal formalized, marked end of
representation]). Moreover, Millus’s offer to provide guidance to new counsel does not clearly
indicate that the relationship continued beyond March 6, 2014 (see id. at 755 [plaintiffs letter to
court stating he would not contest motion to withdraw and was seeking new counsel indicated he
perceived relationship with counsel broken]), nor does Mazario’s unilateral belief that
representation continued (see Davis v Cohen & Gresser, LLP, I 60 AD3d 484, 484 [1st Dept
2018] [statute of limitations not tolled as, inter afia, record reflected lack of mutual
understanding that defendant would continue to represent plaintiff]). Likewise, in these
circumstances, Millus’s delay in moving to withdraw from representation does not prove
continuous representation. (See Riley v Segan, Nemerov & Singer, P.C., 82 AD3d 572, 572-573
[I st Dept 20 I I] [not dispositive that attorney never moved to withdraw, as he sent client letter
stating he could not proceed with case, thereby severing relationship]).  “