Equitable estoppel is (of course) an equitable defense to the statute of limitations.  It is successfully invoked in the legal malpractice field when the target attorney says, for example, “don’t worry about that pesky statute of limitations, we’ll keep talking about settlement for a while.”   What happens when plaintiff seeks to apply it to a situation in which the failure to start a case is intimately bound up with the malpractice.

Schrull v Weis  2018 NY Slip Op 07769  Decided on November 14, 2018  Appellate Division, Second Department, which we discussed yesterday for a different proposition, speaks about the relationship between equitable estoppel and legal malpractice.

“On July 23, 2008, the plaintiff allegedly was hired to perform carpentry work at a home. The plaintiff alleged that he sustained injuries to his left hand while using a defective table saw provided by the nonparty homeowner. In September 2008, the plaintiff allegedly consulted with the defendant Robert A. Weis, who practiced law at the defendant Law Firm of William G. Sayegh, P.C. (hereinafter the defendant law firm), concerning the plaintiff’s legal rights with respect to the accident. On September 16, 2008, the plaintiff executed a retainer agreement, retaining the defendant law firm “to prosecute and/or adjust a claim for serious personal injuries sustained by [the plaintiff] . . . arising from the negligence” of the manufacturer of the table saw, the homeowner, or anyone else responsible (hereinafter the personal injury claim).

On August 7, 2015, the plaintiff commenced this action against Weis, individually and as an associate of the defendant law firm, and the defendant law firm, asserting, inter alia, a cause of action alleging legal malpractice. The complaint alleged that after the plaintiff executed the retainer agreement, Weis informed the plaintiff that the defendants were going to commence a personal injury and products liability action against the owner of the table saw, the manufacturer of the table saw, and ” everyone that touched the table saw'” until it was sold to the homeowner; the [*2]personal injury claim was ” worth millions of dollars'”; and it “would take up to seven (7) years to resolve” the personal injury claim. The complaint further alleged that from approximately September 2008 to late 2008, the plaintiff contacted Weis approximately every two weeks to inquire about the status of the personal injury claim. Weis allegedly advised the plaintiff to ” put the case on the back burner as it was going to take a long time to resolve,'” and that Weis ” had the plaintiff’s contact information,'” and ” if he needed the plaintiff, he would contact him.'” The complaint also alleged that between approximately late 2008 and July 2014, the plaintiff called the defendants’ law office every six to eight months to check on the status of the personal injury claim and spoke to a secretary each time. The complaint alleged that on July 29, 2014, the plaintiff went to the defendants’ office and asked Weis “when his court date was” because “it was getting close” to the seven-year “anniversary of the accident.” Weis allegedly told the plaintiff that he had ” no case,'” and that Weis thought the plaintiff had ” disappeared.'”

“Here, the defendants satisfied their initial burden by demonstrating that the plaintiff’s legal malpractice cause of action accrued on July 23, 2011, when the statute of limitations on the personal injury claim expired, which was more than three years before the commencement of this action (see Shumsky v Eisenstein, 96 NY2d 164, 166; Baker v Levitin, 211 AD2d 507, 507). In opposition, however, the plaintiff raised a question of fact as to whether the continuous representation doctrine tolled the running of the statute of limitations until July 29, 2014, when Weis [*3]allegedly informed the plaintiff that he did not have a case. Upon entering into the retainer agreement, the plaintiff and the defendants reasonably intended that their professional relationship of trust and confidence, focused upon the personal injury claim, would continue. The complaint adequately alleged that the plaintiff was “left with the reasonable impression” that the defendants were, “in fact, actively addressing [his] legal needs” until that date (Shumsky v Eisenstein, 96 NY2d at 169; see Lytell v Lorusso, 74 AD3d 905, 907). The allegations in the complaint failed to reflect, as a matter of law, that the plaintiff knew or should have known that the defendants had withdrawn from representation on the personal injury claim more than three years before the legal malpractice action was commenced (cf. Shumsky v Eisenstein, 96 NY2d at 171; Muller v Sturman, 79 AD2d 482, 486). Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was to dismiss the legal malpractice cause of action as time-barred.

We agree with the Supreme Court’s determination to deny the plaintiff’s cross motion to permanently estop the defendants from raising the statute of limitations as a defense. The plaintiff’s argument that the doctrine of equitable estoppel should be invoked primarily relied upon allegations in the complaint regarding the defendants’ statements and conduct that formed the basis of the legal malpractice cause of action. In order for the doctrine of equitable estoppel to apply, “a plaintiff may not rely on the same act that forms the basis for the claim—the later fraudulent misrepresentation must be for the purpose of concealing the former tort” (Ross v Louise Wise Servs., Inc., 8 NY3d 478, 491; see Zumpano v Queen, 6 NY3d 666, 674; Benjamin v Allstate Ins. Co., 127 AD3d 1120, 1121; Brooklyn Historic Ry. Assn. v City of New York, 126 AD3d 837, 839). Further, even accepting the remaining allegations in the complaint as true, the plaintiff failed to adequately allege that the defendants engaged in an act of deception, fraud, or misrepresentation after the statute of limitations on the personal injury claim had expired (see Putter v North Shore Univ. Hosp., 7 NY3d 548, 552-553).”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

 

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.