We are almost at the end of reading cases which discuss the Covid tolling of the statute of limitations in 2020. Here is one of the last likely legal malpractice cases extended by the plague.
In Nath v Chemtob Moss Forman & Beyda, LLP 2024 NY Slip Op 05061 Decided on October 15, 2024 the Appellate Division, First Department affirmed denial of a CPLR 3211 motion in a divorce setting, and gave a terse but informing description of how the statute of limitations might be applied to multiple claims within a continuing representation analysis.
“Defendants represented plaintiff in a divorce proceeding in New York. She now alleges that defendants committed legal malpractice by failing to advise her to file for divorce in California, which distributes property in a manner that she alleges would have been more favorable to her. She further alleges that California had jurisdiction for commencement of a divorce on the basis of numerous documents showing that her then-husband’s main address was in San Francisco. At the motion to dismiss stage, pursuant to CPLR 3211(a)(7) (see generally Lieberman v Green, 139 AD3d 815, 816 [2d Dept 2016]), these allegations sufficiently state that defendants “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” and that their failure caused plaintiff to suffer “actual and ascertainable damages” (id. at 816-817 [internal quotation marks omitted]; see Escape Airports [USA], Inc. v Kent, Beatty & Gordon, LLP, 79 AD3d 437, 438 [1st Dept 2010]).”
“Plaintiff’s claims are not time-barred. So much of the claims as allege that defendants failed to request maintenance and legal fees in the divorce action accrued on December 23, 2019, when the divorce court granted defendants’ motion to withdraw as plaintiff’s counsel. Since plaintiff commenced the instant action on December 15, 2022, this branch of her malpractice [*2]claim is timely.
Plaintiff’s claim that defendants should have advised her to bring suit in California accrued at the earliest on September 11, 2019. Her claim that they should have introduced evidence to support her motion for exclusive occupancy of the marital residence accrued on November 14, 2019, when the divorce court denied that motion. The continuous representation doctrine does not extend beyond November 27, 2019, when defendants informed plaintiff that they could no longer represent her (see Ellison v Seltzer, 209 AD3d 522, 522 [1st Dept 2022]; RJR Mech. Inc. v Ruvoldt, 170 AD3d 515 [1st Dept 2019]). COVID tolling, however, renders these claims timely (see Murphy v Harris, 210 AD3d 410, 411 [1st Dept 2022]).”