Suing an attorney where there was no direct relationship – privity- is impermissible in legal malpractice settings unless the conduct complained of falls within the very narrow exception of “fraud, collusion, malice or other special circumstances.” Here, the conduct fell into this “narrrow” exception.
A legal malpractice case must be commenced within three years of the departure from good practice, but this period may be tolled by “continuous representation.” This too is a narrow exception. Plaintiffs in Webster v Sherman 2018 NY Slip Op 06590 [165 AD3d 738] October 3, 2018 Appellate Division, Second Department failed to fall into this exception.
“With respect to the cause of action alleging legal malpractice, although the Supreme Court properly determined that there was no attorney-client relationship between the plaintiff and T&L (see Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790, 792 ; Lombardi v Lombardi, 127 AD3d 1038, 1042 ; Terio v Spodek, 63 AD3d 719, 721 ), the second amended complaint set forth a cause of action which fell “within the narrow exception of fraud, collusion, malicious acts or other special circumstances under which a cause of action alleging attorney malpractice may be asserted absent a showing of privity” (Mr. San, LLC v Zucker & Kwestel, LLP, 112 AD3d 796, 797  [internal quotation marks omitted]; see Ginsburg Dev. Cos., LLC v Carbone, 85 AD3d 1110, 1112 ).
However, as an alternate ground for affirmance, T&L contends, as it did in the Supreme Court, that this cause of action is barred by the statute of limitations. “In moving to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable [statute of] limitations period, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired” (Hohwald v Farm Family Cas. Ins. Co., 155 AD3d 1009, 1010  [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v Eitani, 148 AD3d 193, 197 ). “If the defendant meets this initial burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period” (Amrusi v Nwaukoni, 155 AD3d 814, 816  [internal quotation marks omitted]; see Shah v Exxis, Inc., 138 AD3d 970, 971 ).
The statute of limitations for a cause of action alleging legal malpractice is three years [*3]from the accrual of the cause of action (see CPLR 214 ; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1086 ; Farage v Ehrenberg, 124 AD3d 159, 163 ). “Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court . . . regardless of when the operative facts are discovered by the plaintiff” (Farage v Ehrenberg, 124 AD3d at 164 [citations omitted]; see McCoy v Feinman, 99 NY2d 295, 301 ; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1086).
However, legal malpractice claims which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies (see Glamm v Allen, 57 NY2d 87, 91-94 ; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735 ; Farage v Ehrenberg, 124 AD3d at 164), in which case the three-year statute of limitations is tolled for the period following the alleged malpractice “until the attorney’s continuing representation of the client on a particular matter is completed” (Farage v Ehrenberg, 124 AD3d at 164; see Zorn v Gilbert, 8 NY3d 933, 934 ; Glamm v Allen, 57 NY2d at 93). For the doctrine of continuous representation to apply, there must be clear indicia of “an ongoing, continuous, developing, and dependent relationship between the client and the attorney” (Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d 1037, 1038  [internal quotation marks omitted]; see Farage v Ehrenberg, 124 AD3d at 164).
Here, T&L met its prima facie burden by establishing that the last date of the alleged malpractice occurred on January 11, 2006, and the action against it was not commenced until February 6, 2013 (see 3rd & 6th, LLC v Berg, 149 AD3d 794, 795 ; Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d at 1038). In opposition, the plaintiff failed to raise a triable issue of fact as to whether continuous representation tolled the statute of limitations (see 3rd & 6th, LLC v Berg, 149 AD3d at 795-796; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1087).”