A recurring situation where a law firm moves to be relieved shortly before a motion for summary judgment or before trial is often linked to the lack of an expert, or the reluctance of the law firm to hire (and expend funds for) an expert.  Of course, this is not the only reason law firms litigate a case for years and then abruptly exits the case.  How the law firm exits is very important.

In Davis v Siben & Siben, LLC  2022 NY Slip Op 06906 Decided on December 7, 2022  the Appellate Division, Second Department placed great weight on the day that the law firm served an order permitting withdrawal with notice of entry on Plaintiff.

“The defendant, Siben & Siben, LLC, represented the plaintiff in an underlying action entitled Davis v Commack Hotel, LLC, which sought to recover damages for, inter alia, negligence, wrongful death, and conscious pain and suffering as it related to the death of the plaintiff’s son. On or about October 1, 2014, the defendant moved to be relieved as counsel in that action, which motion was granted under the following conditions: that the defendant serve the plaintiff with a notice of entry within 20 days, and that the defendant file proof that such service had been effected. The defendant served the plaintiff with the notice of entry on November 10, 2014.

On or about January 11, 2018, the plaintiff, pro se, commenced this action alleging legal malpractice and fraudulent misrepresentation against the defendant. The defendant moved, inter alia, for summary judgment dismissing the complaint. The Supreme Court granted the motion. The plaintiff appeals, and we affirm.

“The statute of limitations for a cause of action to recover damages for legal malpractice is three years, which accrues at the time the malpractice is committed” (Tulino v Hiller, P.C., 202 AD3d 1132, 1135 [internal citations omitted]). “However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates” (Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 144 AD3d 956, 957). “For the doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the [*2]client and the attorney. One of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties” (Beroza v Sallah Law Firm, P.C., 126 AD3d 742, 743 [internal citations and quotation marks omitted]). Here, the defendant was relieved as counsel no later than November 10, 2014, when it fulfilled the obligations set out by the Supreme Court. Insofar as this action was commenced more than three years later, on January 11, 2018, the legal malpractice claims were untimely.”