As is so familiar, legal malpractice cases based upon negligent estate planning often founder on the time lapse between the negligent advice and the unfavorable outcome of that advice. Chester v List 2026 NY Slip Op 02962 May 13, 2026 Appellate Division, Second Department is an example.

“On May 31, 2024, the plaintiff commenced this action against the defendant, inter alia, to recover damages for legal malpractice. The plaintiff alleged, among other things, that her mother, Julia Mallico, and her stepfather, John Mallico, engaged the defendant attorney in 2008 to create a trust to hold title to certain real property owned by Julia Mallico and John Mallico for the exclusive benefit of the plaintiff. The plaintiff further alleged that the defendant, among other things, failed to correctly draft the trust agreement in accordance with the prevailing estate plan, resulting in John Mallico, rather than the plaintiff, obtaining a testamentary power of appointment, which enabled John Mallico to subsequently create a new estate plan to deprive the plaintiff of her entitlement to the property that was the subject of the trust.

Thereafter, the defendant moved pursuant to CPLR 3211(a) to dismiss the complaint, inter alia, as time-barred and for failure to state a cause of action. The plaintiff opposed the motion. In an order dated January 21, 2025, the Supreme Court granted the defendant’s motion. The plaintiff appeals.

“On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. If the defendant meets this initial burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period” (Wells Fargo Bank, N.A. v Leopold & Assoc., PLLC, 238 AD3d 1195, 1196 [citation and internal quotation marks omitted]).

“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, not when the client discovers it” (Kreutzberg v Law Offs. of John Riconda, P.C., 210 AD3d 884, 884-885 [citations omitted]; see CPLR 214[6]). “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” (Wells Fargo Bank, N.A. v Leopold & Assoc., PLLC, 238 AD3d at 1196 [internal quotation marks omitted]). “For the continuous representation doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” (Dellwood Dev., Ltd. v Coffinas Law Firm, PLLC, 233 AD3d 752, 753 [internal quotation marks omitted]).

Here, to the extent that the complaint alleged legal malpractice based on the defendant’s failure to correctly draft or review the trust, failure to instruct John Mallico of his obligations under the estate plan and trust, failure “to advise or otherwise protect” the plaintiff’s interests in the estate plan, and engagement in a “conflicted representation as attorney for Plaintiff while advising [John] Mallico concerning his divergent individual interests,” the defendant established, prima facie, that those allegations were time-barred (see Lambro Indus., Inc. v Gilbert, 233 AD3d 765, 768; King Tower Realty Corp. v G & G Funding Corp., 163 AD3d 541, 543-544). In opposition to the defendant’s prima facie showing, the plaintiff failed to raise a question of fact as to whether the continuous representation tolled the applicable statute of limitations based on the defendant’s alleged intermittent representation of the plaintiff (see Byron Chem. Co., Inc. v Groman, 61 AD3d 909, 911). Contrary to the plaintiff’s contention, she failed to establish that the defendant was engaged in efforts to rectify his mistake in drafting the trust so as to raise a question of fact as to the applicability of the continuous representation doctrine (cf. DeStaso v Condon Resnick, LLP, 90 AD3d 809, 813). Moreover, the plaintiff failed to raise a question of fact as to the applicability of the continuous representation doctrine based on her allegations that the defendant provided legal services to her in connection with her listing the property for sale, which involved distinct services from the defendant’s prior services to create the trust (see Goodman v Weiss, Zarett, Brofman, Sonnenklar & Levy, P.C., 199 AD3d 659, 662). Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a) to dismiss the aforementioned allegations as time-barred.”