In the legal malpractice setting, continuous representation is well understood. In the medical setting, continuous treatment is well understood. The rationale is that it is better for a client/patient to stay with the professional and try to fix the mistakes/problems rather than litigate. So it is with professionals such as architects.
Jeffrey Berman Architect v Kodsi 2019 NY Slip Op 01398 [169 AD3d 1019]
February 27, 2019 Appellate Division, Second Department is a good example.
“This breach of contract action arises from an architectural contract in which the plaintiff agreed to provide architectural services for the construction of an ambulatory surgery center in Brooklyn. The defendant Robert Kodsi (hereinafter the defendant) asserted two counterclaims against the plaintiff. The first counterclaim alleged professional malpractice based, inter alia, on the failure of the constructed ambulatory surgery center to obtain accreditation from the Accreditation Association for Ambulatory Health Care because the center did not comply with applicable design and construction standards. The plaintiff moved for summary judgment dismissing the defendant’s first counterclaim, arguing that it fell outside of the one-year statute of limitations provided for in the contract. The Supreme Court denied the motion, finding that a triable issue of fact existed as to whether the continuous representation doctrine tolled the statute of limitations based on work the plaintiff had done within the limitations period in an attempt to remedy the accreditation problem. The plaintiff appeals.
In opposition to the plaintiff’s prima facie showing that the defendant’s counterclaim alleging professional malpractice was commenced outside of the applicable one-year statute of limitations, the defendant raised a triable issue of fact as to whether the continuous representation doctrine applied to toll the running of the limitations period. “The law recognizes that the supposed completion of the contemplated work does not preclude application of the continuous representation toll if inadequacies or other problems with the contemplated work timely manifest themselves after that date and the parties continue the professional relationship to remedy those problems” (Regency Club at Wallkill, LLC v Appel Design Group, P.A., 112 AD3d 603, 607 ). Under the circumstances, the evidence of continuing communications between the parties and evidence of the plaintiff’s efforts to remedy the alleged errors or deficiencies in the architectural plans supported the denial of the plaintiff’s motion for summary judgment dismissing the defendant’s counterclaim alleging professional malpractice (see Bronstein v Omega Constr. Group, Inc., 138 AD3d 906, 908 ; Regency Club at Wallkill, LLC v Appel Design Group, P.A., 112 AD3d at 607).”