The First Department decided Basile v. The Law Offices of Neil Brickman, P.C., this week, giving further dimension to how it decides continuing representation issues. Here, communications with the law firm, even after a long period, can suffice for continuing representation.
“Order, Supreme Court, New York County (Shawn T. Kelly, J.), entered on or about September 23, 2021, which denied defendants’ motion to dismiss plaintiff’s third
cause of action, for legal malpractice, pursuant to CPLR 3211 (a)(1), (a)(5), and (a)(7), unanimously affirmed, without costs.
The legal malpractice claim may not be barred by the three-year statute of limitations (CPLR 214). Plaintiff contends that the claim was tolled by the continuous
representation doctrine based on alleged emails and telephone conversations about collecting on plaintiff’s money judgment against the judgment debtor following its entry
in 2010, at which time the judgment debtor did not have sufficient assets to satisfy the judgment. Defendants, however, assert that there was no continuous representation because plaintiff had no communication with them concerning collecting on the unsatisfied judgment until August 2019, when the limitations period on the instant claim had expired. These factual contentions concerning whether defendant continued to represent plaintiff during the relevant time period so as to toll the limitations period give rise to factual issues that cannot be resolved in this pre-answer motion to dismiss (see Boesky v Levine, 193 AD3d 403 [1st Dept 2021]; Johnson v Law Off. of Kenneth B. Schwartz, 145 AD3d 608, 612 [1st Dept 2016]).”