Fraumeni v Law Firm of Jonathan D’Agostino, P.C. 2023 NY Slip Op 01984
Decided on April 19, 2023 Appellate Division, Second Department illustrates the outer limits of “continuous representation” which requires a continuing relationship of trust and confidence as well as a mutual understanding of the need for further legal work. Here, the act of asking for the file to be returned marked the end of “continuous representation.”

“On July 3, 2019, the plaintiff commenced this action against the defendants, the Law Firm of Jonathan D’Agostino, P.C. (hereinafter the law firm), Jonathan D’Agostino, Edward J. Pavia, Glen Devora, and Frank J. DiBari, to recover damages for legal malpractice and violation of Judiciary Law § 487. The plaintiff alleged, inter alia, that the defendants committed legal malpractice in their representation of her in two personal injury actions (hereinafter the underlying actions) by suing the wrong parties, leading to the dismissal of the underlying actions, and that as a result of the defendants’ failure to ascertain the proper parties to sue, any new action was time-barred since the statute of limitations had expired. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint, asserting, inter alia, that the action was time-barred. The defendants contended that the action was commenced after the expiration of the applicable three-year statute of limitations, which began to run on May 4, 2016, when the plaintiff demanded, and received, her legal file from them. The plaintiff opposed on the ground that the action was timely commenced pursuant to the continuous representation doctrine, since the statute of limitations only began to run on July 15, 2016, when the Supreme Court granted the law firm’s motion to withdraw as counsel in the underlying actions. In an order dated February 19, 2020, the Supreme Court granted the defendants’ motion, and, by a judgment entered February 21, 2020, dismissed the complaint as time-barred. The plaintiff appeals. We affirm.”

“The statute of limitations for a cause of action alleging legal malpractice, and a cause of action alleging a violation of Judiciary Law § 487 arising out of the same transactions as the legal malpractice cause of action, is three years (see CPLR 214[6]; Farage v Ehrenberg, 124 AD3d 159). “‘However, causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies'” (Keshner v Hein Waters & Klein, 185 AD3d 808, 808, quoting Farage v Ehrenberg, 124 AD3d at 164 [alterations and internal quotation marks omitted]). “For the doctrine to apply, there must be clear indicia of ‘an ongoing, continuous, developing, and dependent relationship between the client and the attorney'” (Farage v Ehrenberg, 124 AD3d at 164, quoting Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d 1037, 1038; see Joseph v Fensterman, 204 AD3d at 770). “The essence of a continuous representation toll is the client’s confidence in the attorney’s ability and good faith, such that the client cannot be expected to question and assess the techniques employed or the manner in which the services are rendered” (Farage v Ehrenberg, 124 AD3d at 167). Therefore, “[o]ne of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties” (id. [internal quotation marks omitted]). “‘What constitutes a loss of client confidence is fact specific, varying from case to case, but may be demonstrated by relevant documentary evidence involving the parties, or by the client’s actions'” (Tantleff v Kestenbaum & Mark, 131 AD3d 955, 957, quoting Farage v Ehrenberg, 124 AD3d at 168).

Here, the defendants established, prima facie, that the plaintiff’s legal malpractice and Judiciary Law § 487 causes of action were time-barred, as they accrued when the underlying actions were commenced in 2013 and 2015 (see Sclafani v Kahn, 169 AD3d 846, 849; Farage v Ehrenberg, 124 AD3d at 167-168). In opposition to the defendants’ prima facie showing, the plaintiff failed to raise a question of fact as to whether the continuous representation doctrine tolled the applicable statute of limitations. Contrary to the plaintiff’s contention, the record supports the Supreme Court’s determination that the relationship necessary to invoke the continuous representation doctrine ceased to exist on May 4, 2016, when the plaintiff demanded and received her file from the defendants’ office, thereby indicating her lack of trust and confidence in the parties’ relationship and her intention to discharge the defendants as her attorneys (see Aseel v Jonathan E Kroll & Assoc., PLLC, 106 AD3d at 1038). Moreover, numerous documented communications between the parties submitted by the plaintiff in opposition demonstrated that she lost all trust and confidence in the defendants, such that the attorney-client relationship ceased more than three years before the plaintiff commenced this action (see Sclafani v Kahn, 169 AD3d at 849; Farage v Ehrenberg, 124 AD3d at 160-161).”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.