Plaintiff is injured in 1982 and again in 1983.  This month a legal malpractice case arising from the two cases was partially dismissed in Supreme Court, New York County.  In the interim the world has changed.

Deutsch v Ullman  2012 NY Slip Op 30748(U)  March 23, 2012  Sup Ct, New York County  Docket Number: 110595/2010  Judge: Saliann Scarpulla decides two issues.  How long may a dissolved law firm be kept in the case as time goes by, and to what extent must plaintiff prove that she would have succeeded on the underlying case?

"These actions arose from separate incidents that occurred in 1982 and 1983 while Deutsch worked as a public school teacher in Brooklyn, New York. In the first action (the “1982 action”), Deutsch alleged that she sustained personal injuries on or about April 29, 1982 after one of her second-grade students grabbed her left arm. Deutsch alleged in her complaint that the Board was negligent in failing to protect her from the student.

The second action (the “ 1983 action”) arose out of back injuries Deutsch allegedly sustained on October 16, 1983, while she attempting to close a window in her classroom. In her complaint, Deutsch alleged that the Board was liable for “improperly maintaining windows in her classroom,” failing to provide a pole to open and close the windows and failing to provide personnel to close the windows."

"Nine years later, in June 2003, Ullman & Huber P.C. dissolved. After the firm’s dissolution, David Ullman, Esq. and Deutsch continued to maintain an attorney-client I relationship. It is undisputed that Huber no longer represented Deutsch after the firm I dissolved. Deutsch commenced this action in December, 20 10, asserting causes of action for professional negligence, poor due diligence, vicarious liability for the professional negligence, and breach of contract.

Here, defendants have made a prima facie showing that the complaint should be dismissed against Ezra Huber, Esq. and Ezra Huber & Associates, P.C. as time-barred. The statute of limitations on legal malpractice claims accrues on the date of the malpractice, and is tolled until the completion of the attorney’s representation of the client. CPLR 9 214; see Glamm v. Allen, 57 N.Y.2d 87, 93-94 (1982).

Further, Deutsch’s legal malpractice cause of action based on the 1982 action is dismissed as to the remaining defendants. To prevail in an action for legal malpractice, a plaintiff must demonstrate that she would have prevailed on the merits of the underlying action “but for” the attorney’s negligence. Aquino v. Kuczinski, Vila & Assoc., P. C., 39 A.D.3d 216, 218-19 (lst Dept. 2007). A defendant in an attorney malpractice action is entitled to summary judgment where the defendant shows that the plaintiff would not have prevailed in the underlying action notwithstanding the alleged malpractice. See Walker v. Glotzer, 79 A.D.3d 737,738 (2d Dept. 2010).
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Deutsch does not dispute that she and Huber did not have an attorney-client relationship after Ullman & Huber’s dissolution in July 2003, more than three years before she commenced this action. Nor does she dispute that the alleged legal malpractice occurred more than three years before this suit "