Menkes v Greenwald 2022 NY Slip Op 32882(U) August 24, 2022 Supreme Court, New York County Docket Number: Index No. 159685/2021 Judge: David B. Cohen is an illustration of how the continuous representation period can end when one of the legs collapses. Specifically the legs to continuous representation are a continuing relationship of trust and confidence, the shared understanding of the need for further legal work, and actual further legal work.
In this case, there was a lapse in the continuing relationship of trust and confidence.
“Generally, a cause of action for legal malpractice accrues on the date that the alleged malpractice was committed, and a plaintiff has three years to commence such action (see CPLR
214 ; Glamm v Allen, 57 NY2d 87, 93 ). That three-year statute of limitations can also be tolled under the doctrine of continuous representation (see Glamm, 57 NY2d at 93-95).
However, tolling resulting from continuous representation ends “once the client is informed or otherwise put on notice of the attorney’s withdrawal from representation” (Shumsky v Eisenstein, 96 NY2d 164, 170-171 ; accord RJR Mech. Inc. v Ruvoldt, 170 AD3d 515,515 [1st Dept 2019]), such as when an attorney provides a client with all of that client’s files (see Marzario v Snitow Kanfer Holzer & Millus, LLP, 178 AD3d 527, 528 [1st Dept 2019]).
In her complaint, plaintiff does not provide an exact date of defendants’ alleged malpractice (Doc No. 31 at 3-9). However, in support of their motion, defendants submit emails
between themselves and plaintiff discussing the representation (Doc Nos. 44-45). In a May 2016 email, defendants stated that they were “preclude[d]” from further representing plaintiff because of her threats to sue defendants for legal malpractice; and in an email from August 23, 2016, defendants stated that they had provided plaintiff with all of her files (Doc Nos. 44-45). Even under the doctrine of continuous representation, and giving plaintiff the benefit of every possible inference, the relationship between the parties ended, and the limitations period began to run, on August 23, 2016 (see Marzario, 178 AD3d at 528; Riley v Segan, Nemerov & Singer, P.C., 82 AD3d 572, 572-573 [1st Dept 2011]). Therefore, plaintiff was required to commence an action by August 23, 2019 (see CPLR 214 ). Since plaintiff did not commence the instant action until October 25, 2021 (Doc No. 1 at 13), her legal malpractice claim is barred by the statute of limitations and must be dismissed (see Riley, 82 AD3d at 573). “