It only comes up once in a while, but Jonns v Fischbarg 2018 NY Slip Op 32353(U) September 18, 2018 Supreme Court, New York County Docket Number: 150729/2017 Judge: Kathryn E. Freed applies an alternative “commencement” of the statute of limitations found in McCoy v. Feinman, 99 NY2d 295,301(2002). In McCoy the Court of Appeals wrote:
“An action to recover damages arising from an attorney’s malpractice must be commenced within three years from accrual (see CPLR 214  ). A legal malpractice claim accrues “when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court” (Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541, 620 N.Y.S.2d 318, 644 N.E.2d 1009  ). In most cases, this accrual time is measured from the day an actionable injury occurs, “even if the aggrieved party is then ignorant of the wrong or injury” (id.). “What is important is when the malpractice was committed, not when the client discovered it” (Shumsky, 96 N.Y.2d at 166, 726 N.Y.S.2d 365, 750 N.E.2d 67; Glamm v. Allen, 57 N.Y.2d 87, 95, 453 N.Y.S.2d 674, 439 N.E.2d 390  ).2 Though we have recognized tolls on this three-year limitations period under the continuous representation doctrine (see Shumsky at 167-168, 726 N.Y.S.2d 365, 750 N.E.2d 67), we have recognized no exception to measuring the accrual date from the date of injury caused by an attorney’s malpractice. Thus, the key issue on this appeal is when plaintiff’s actionable injury occurred.”
Here, in Jonns, Supreme Court found: “Here, Fischbarg asserts that the three-year limitations period for legal malpractice (see CPLR 214) expired because, although he drafted the purchase agreement in August of 2010 (Docs. 6 at 5, 23 at 2), Jonns commenced the instant action in March of 2017 (Doc. 8 at 11 ), more than three years after the purchase agreement was drafted and eventually signed by Dorsia and Jonns. However, the limitations period did not begin to run in August of 2010. As the Court of Appeals has held, the “accrual time is measured from the day an actionable injury occurs … . “(McCoy, 99 NY2d at 301.) Although Fischbarg may have improperly drafted the purchase agreement in August of2010, his negligence did not become actionable until Jonns suffered actual damages. In this instance, Jonns allegedly suffered actual damages when he was forced to defend himself in the Dorsia action, which was commenced in June of 2016,8 as a result ofFischbarg’s failure to advise him not to sign the purchase agreement in his own personal
capacity. Thus, Jonns’ legal malpractice claim is timely.