“”An action to recover damages for legal malpractice must be commenced within three years after the accrual of the cause of action” (Bullfrog, LLC v Nolan, 102 AD3d 719, 719-720; see CPLR 214).” Thus starts and ends most legal malpractice case discussions of the onset of the statute of limitations. That date might be extended by continuous representation. However, in Golden Jubilee Realty, LLC v Castro, 2021 NY Slip Op 04541,Decided on July 28, 2021, Appellate Division, Second Department the Court applied a very rare exception.
“”In moving [*2]to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable” (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 789 [citations omitted]). “An action to recover damages for legal malpractice must be commenced within three years after the accrual of the cause of action” (Bullfrog, LLC v Nolan, 102 AD3d 719, 719-720; see CPLR 214). “A legal malpractice claim accrues ‘when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court'” (McCoy v Feinman, 99 NY2d 295, 301, quoting Ackerman v Price Waterhouse, 84 NY2d 535, 541). Under the circumstances of this case, the statute of limitations did not begin to run until specific performance was awarded in the Karpen action, on April 2, 2015 (see Frederick v Meighan, 75 AD3d 528, 531-532). The instant action was commenced on December 29, 2017. Thus, Pacht failed to meet his initial burden of establishing that the plaintiffs’ cause of action to recover damages for legal malpractice was time-barred.”