Previously, we looked at the Judiciary Law § 487 claims.  Legal Malpractice Claims were also brought in Joseph v Fensterman  2022 NY Slip Op 02398 [204 AD3d 766] April 13, 2022
Appellate Division, Second Department.

“Contrary to the plaintiffs’ contention, the Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the third cause of action, to recover damages for legal malpractice against the law firm, Howard Fensterman, Robert Fensterman, Kathleen Eisman, as executor of the estate of Steven J. Eisman, and Patrick Formato (hereinafter collectively the Operating Company attorneys) based upon their representation of Martin Farbenblum and Bacchi in the Bay Park Operating Company acquisition. “ ’To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages’ ” (Lopez v Lozner & Mastropietro, P.C., 166 AD3d 871, 873 [2018], quoting Dempster v Liotti, 86 AD3d 169, 176 [2011]).

“ ’An action to recover damages arising from legal malpractice must be commenced within three years, computed from the time the cause of action accrued to the time the claim is interposed’ ” (Schrull v Weis, 166 AD3d 829, 831 [2018], quoting 3rd & 6th, LLC v Berg, 149 AD3d 794, 795 [2017]; see CPLR 214 [6]). “In moving 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” (Schrull v Weis, 166 AD3d at 831 [internal quotation marks omitted]; see Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 789 [2017]).

Pursuant to the doctrine of continuous representation, “ ’the time within which to sue on the [cause of action] is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates’ ” (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 789, quoting Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 144 AD3d 956, 957 [2016]). “For the continuous representation doctrine to apply, ‘there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney’ ” (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 789, quoting Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506 [1990]; see Schrull v Weis, 166 AD3d at 831).

Here, the defendants demonstrated, prima facie, that the third cause of action was untimely. In opposition, the plaintiffs failed to raise a question of fact as to whether the continuous representation doctrine or any other legal basis applied to toll the statute of limitations (see Potenza v Giaimo, 165 AD3d 1186, 1187-1188 [2018]). Although the amended complaint alleged that the Operating Company attorneys told the plaintiffs they would return Martin Farbenblum and Bacchi’s full 10% interests to them through 2013, there is no allegation that the Operating Company attorneys provided legal representation to the plaintiffs after 2009. “Application of the continuous representation . . . doctrine is . . . generally limited to the course of representation concerning a specific legal matter,” not merely a continuing relation between the attorney and client (Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]).

The Supreme Court should have denied that branch of the defendants’ motion which sought dismissal of the fourth cause of action, to recover damages for legal malpractice against the law firm, Howard Fensterman, and Lichtenstein based upon their representation of the plaintiffs in the New Franklin litigation. As an initial matter, the record raises “a question of fact as to whether the applicable statute of limitations was tolled by the continuous representation doctrine” (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 790). Moreover, “accepting the facts alleged in the complaint as true, and according the plaintiff[s] the benefit of every possible favorable inference, the plaintiff[s] stated a cause of action to recover damages for legal malpractice” (Lopez v Lozner & Mastropietro, P.C., 166 AD3d at 873).

[*4] The Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the fifth cause of action, to recover damages for legal malpractice against the law firm, Howard Fensterman, Formato, and Mark Frimmel based upon their representation of the plaintiffs during the acquisition of the property on which the Bayview Nursing and Rehabilitation Center is located. Accepting the allegations in the amended complaint as true, the fifth cause of action failed to set forth facts sufficient to allege that those defendants’ purported negligence proximately caused the plaintiffs to sustain actual and ascertainable damages (see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813 [2013]; Siwiec v Rawlins, 103 AD3d 703, 704 [2013]).”