Judgments don’t last forever. They lapse after a number of years. This legal malpractice case tests the limits of how long plaintiff can wait to sue for legal malpractice.
Potenza v Giaimo 2018 NY Slip Op 07164 [165 AD3d 1186] October 24, 2018 Appellate Division, Second Department concerns litigation that began almost 25 years ago. “The defendants represented the plaintiff in an action against a nonparty to recover on loans that the plaintiff made to the nonparty. In 1995, the plaintiff obtained a judgment in that action. In 2009, the defendants attempted unsuccessfully to obtain a renewal judgment (see CPLR 5014). Thereafter, in 2014, the plaintiff commenced the instant action against the defendants, alleging, inter alia, legal malpractice, fraudulent misrepresentation, and a violation of Judiciary Law § 487. The plaintiff moved to disqualify the defendant Joseph O. Giaimo from representing the defendant Giaimo Associates, LLP, and from appearing pro se. The defendants cross-moved, inter alia, for summary judgment dismissing the complaint. In the order and judgment appealed from, the Supreme Court, inter alia, denied the motion, granted those branches of the cross motion which were for summary judgment dismissing the first, second, third, and fifth causes of action, and thereupon, dismissed those causes of action.”
“The statute of limitations for causes of action alleging legal malpractice is three years (see CPLR 214 ; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735 ). A cause of action to recover damages for legal malpractice accrues when the malpractice is committed (see Shumsky v Eisenstein, 96 NY2d 164, 166 ). However, pursuant to the doctrine of continuous representation, the limitations period is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates (see Shumsky v Eisenstein, 96 NY2d at 167-168; Aqua-Trol Corp. [*2]v Wilentz, Goldman & Spitzer, P.A., 144 AD3d 956, 957 ). 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 ).
Here, the defendants satisfied their initial burden by demonstrating, prima facie, that the alleged legal malpractice occurred more than three years before this action was commenced in 2014. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the applicable statute of limitations was tolled by the continuous representation doctrine. Accordingly, we agree with the Supreme Court’s determination dismissing the plaintiff’s legal malpractice causes of action as untimely.”