It’s a chicken or the egg issue. Attorney drafts will. Will is negligently drafted. Time goes by. Will proponent dies. Beneficiary becomes executrix. Estate sues attorney drafter. Statute of limitations is raised as a defense. Was the malpractice complete at the will drafting, or was it complete when the negligent bequest becomes active?
Generally speaking, it is the former, as Schor v Spadaro 2020 NY Slip Op 30668(U) February 26, 2020 Supreme Court, Kings County Docket Number: 525714/2018 Judge: Peter P. Sweeney holds:
“The defendant thereafter drafted a Last Will and Testament for the decedent which the decedent executed on May 26. 2011. In her Will, the decedent bequeathed to her son, Frederick Trapanese, the sum of $10.00 and the remainder of her estate, both real and personal, to the plaintiff. There are no allegations in the complaint that the defendant
performed any additional legal services for the decedent or for the plaintiff after the Will was executed.
The decedent died in 2017. After her death, the plaintiff approached a
representative of Marine Cooperative and asked for permission to access the decedent’s cooperative apartment to possibly renovate it and sell the corresponding shares. By letter dated September 8, 2017, Marine Cooperative informed the plaintiff that it had the right of first refusal and that it would not authorize the sale of decedent’s shares. Plaintiff commenced this action on December 21, 2018 alleging causes of action for legal malpractice, breach of contract and breach of fiduciary duty. All three causes of action are based on the following claims: Plaintiff contends since the defendant had an attorney-client relationship with Marine Cooperative and sat on its Board, she should not have undertook to draft the Will for the decedent. She also contends that the defendant committed malpractice by failing to inform the decedent of the conflict, by failing to obtain a waiver of the conflict from the decedent and for failing inform the decedent of the consequences of Marine Cooperative right of first refusal. Plaintiff alleged that she was damaged in the amount of One Million Dollars ($1,000,000.00) but there are no allegations particularizing these damages. ”
“Here, the defendant established that the plaintiffs’ legal malpractice cause of action accrued no later than May 26, 2011, when the decedent executed the Will. As of this date, all the facts necessary to plaintiffs cause of action for legal malpractice had occurred and plaintiff could have obtained relief in court if her claim was determined to be meritorious.
As of May 26, 2011, all the acts and omissions which plaintiff claims constituted defendant’s malpractice had occurred which caused damage to the decedent “at least nominally and at least equivalent to the value of the cost attendant to having a new will
prepared and executed” (Goldberg v. Bosworth, 29 Misc. 2d 1057, 1060, 215 N.Y.S.2d 849, 852). It is irrelevant that neither the decedent nor the plaintiff was aware of defendant’s alleged malpractice or that plaintiff may have suffered additional damages after this date.
Since plaintiffs legal malpractice claim accrued no later than May 26, 2011, the defendant established, prima facie, that the time within which to sue had expired as of December 21, 2018, when the action was commenced. In opposition, the plaintiff failed to raise a question of fact as to whether the statute of limitations had been tolled, whether an
exception to the limitations period applied or whether the plaintiff actually commenced the action within the applicable limitations period.
Plaintiffs reliance on Estate of Schneider v. Finmann, 15 N.Y.3d 306, 308, 933 N.E.2d 718, 719 is misplaced. The issue in Finmann was whether the personal representative of a decedent’s estate had sufficient privity with decedent’s attorney to bring legal malpractice action for damages resulting from negligent representation of the decedent in estate tax planning. There was no issue in Finnman as to whether the action
was timely commenced. “