Reading legal malpractice cases is an exercise in human sadness and unfortunate circumstance.    Okello v Schwartzapfel, P.C.  2018 NY Slip Op 30402(U)  March 12, 2018  Supreme Court, New York County  Docket Number: 154971/2017  Judge: Arlene P. Bluth  is no exception.  The case illustrates the intersection between mental illness, insanity and tolling of the statute of limitations.  There are few tolls of the statute.  Infancy, insanity and death are three that exist by statute.  What is insanity in the setting of everyday life?

“This legal malpractice case arises out of defendants’ representation of plaintiff Okello (“plaintiff’) in connection with her unsuccessful application for Social Security Income and Disability Insurance Benefits (hereinafter, “Social Security benefits”).· Plaintiff alleges that she began receiving Social Security benefits in 1999 as a result of suffering from bi-polar disorder, a condition which has caused her to be hospitalized on numerous occasions. Plaintiff claims that she relied on these benefits and the income of her husband to provide for her family. However, her husband suffered a stroke in 2006 and was subsequently unable to work. He eventually moved back to live with his parents in Zimbabwe, leaving plaintiff to take care of their children. Plaintiff lost her Social Security benefits in 2012 and filed an application to have her benefits reinstated.

When her initial application was denied, plaintiff hired defendants in December 2012 to .represent her in an appeal of the denial. Plaintiff claims she told defendants about how dire her financial situation and how much she needed the money to support her family. A hearing date of October 9, 2013 was set for plaintiffs appeal.

Before the hearing, the relationship between plaintiff and defendants deteriorated.
Plaintiff contends that defendants were rude and showed a lack of knowledge about her case.
Plaintiff fired defendants in June 2013. Defendants t9ld the Social Secur~ty Administration (the
body hearing plaintiffs appeal) ori June 13, 2013 that it no longer represented.plaintiff.
Thereafter, on September 4, 2013, defendants filed a request with the Social Security
Administration to withdraw plaintiffs appeal and claimed they were doing so with plaintiffs
consent. Plaintiff alleges that this letter was sent without her consent. The Social Security
Administration subsequently dismissed plaintiffs appeal on September 10, 2013.””

On the date of the hearing, October 9, 2013, plaintiff contends that she ·showed up for the
appeal and was shocked when she was told that her case had been dismissed. Plaintiff claims that
her mental condition deteriorated after the withdrawal of her appeal and that her husband (still
living in Zimbabwe at the time) eventually committed suicide in Decem~er 2013. Plaintiff
contends that her husband was distraught over the dismissal of plaintiffs claim, which would
prevent him from returning to the United States because the family did not have enough money
to support him.”

“Defendants argue that the time for plaintiff to file a legal malpractice cause of action ·
began to run in September 2013, when defendants allegedly sent the letter withdrawing plaintiffs
appeal. Defendants claim that this case was filed more than 3 years later in May 201 7.
In opposition, plaintiff argues that the legal malpractice claim accrued when plaintiff was
awarded benefits in March 2017. Plaintiff insists that she could not have brought a legal
malpractice claim until she knew whether her second attempt at getting benefits was successful.
Plaintiff also claims that the statute of limitations should be tolled both on equitable grounds or
on the basis that plaintiff suffered from a legal infirmity.

As an initial matter, the Court finds that the cause of action accrued on September 10,
2_013-when the Social Security Administration dismissed plaintiffs case. Although plaintiff
claims that she did not find out about the dismissal until she showed up for the hearing on
October 9, 2013 “the accrual time is measured from the day an actionable injury occurs even if
the aggrieved party is ignorant of the wrong or injury. What is important is when the malpractice was committed, not when the client discovered it” (McCoy v Feinman, 99 NY2d 295, 301, 755 NYS2d 693 [2002]). Here, the alleged malpractice was on September 10, 2013, the date when plaintiffs appeal was dismissed.
Plaintiffs claim that she did not have a viable cause of action until she was successful in
her second attempt to get Social Security benefits is without merit. As stated above, to establish
causation on this claim, plaintiff must show that she would have prevailed in the
underlying action. Here, that underlying action was dismissed in September 2013. Simply
because the Social Security Administration allows a person to file a new request for benefits does
not toll the statute of limitations arising from the denial of the first application. There is no
reason why plaintiff could not have brought a legal malpractice claim before.her subsequent
· Social Security claim was resolved. A legal malpractice cause of action accrues “from the date
of injury caused by the an attorney’s malpractice” (id.). Here, that was when the Social Security
Administration dismissed plaintiffs application for benefits following defendants withdrawal of
plaintiffs appeal, allegedly without her consent. Confirmation that plaintiff eventually won back
her benefits certainly would be helpful in proving a legal malpractice case, but it does not change
when the statute of limitations began to run. “