It’s not always true that plaintiff can rely upon the filing date of a consent to change attorney as the end of continuous representation. In certain circumstances it can end much earlier. Nevertheless, in Farina v Katsandonis, P.C.2021 NY Slip Op 05078 Decided on September 28, 2021
Appellate Division, First Department it was the date from which the statute of limitations was calculated.
“Supreme Court properly determined that plaintiff’s complaint, filed April 22, 2019, is barred by the three-year statute of limitations applicable to legal malpractice causes of action, and thus, amendment of the complaint would be futile (see generally McCoy v Feinman, 99 NY2d 295, 301 ). The documentary evidence submitted by defendants established, as a matter of law, that their representation of plaintiff ended no later than April 7, 2016, the day the fully executed consent to change attorney form was filed. The filing of that form automatically ended defendants’ obligation to represent plaintiff notwithstanding defendants’ pending motion to be relieved, and for a charging lien (see CPLR 321[b]). Plaintiff failed to allege sufficient facts showing that there was a mutual understanding of the need for further representation of plaintiff by defendants after April 7, 2016 (cf. Unger v Horowitz, 8 AD3d 62, 62 [1st Dept 2004]; see generally McCoy, 99 NY2d at 306 ). Borelli had clearly assumed representation of plaintiff by April 7, 2016, because on March 29, 2016, it opposed defendants’ motion for a charging lien on plaintiff’s behalf, and on March 31, 2016, it received plaintiff’s file from defendants (see MacArthur v Hall, McNicol, Hamilton & Clark, 217 AD2d 429, 429-430 [1st Dept 1995]).
Plaintiff’s argument that defendants should be estopped from claiming that their representation ended before April 21, 2016, when their motion to be relieved as counsel and for a charging lien was resolved by so-ordered stipulation, because they did not previously withdraw their request to be relieved as counsel or inform the court that that request was moot, is not persuasive. In light of the foregoing, we do not reach the parties’ remaining arguments regarding collateral estoppel and failure to state a cause of action.”