Attorney fee disputes reflexively lead to legal malpractice claims.  While that is true, the concept that all legal malpractice claims are dubious strongly overshadows the unassailable fact that attorneys are human, and that without any doubt, humans make mistakes.  That being said, Louis F. Burke PC v Aezah 2017 NY Slip Op 32670(U) December 14, 2017 Supreme Court, New York County Docket Number: 654778/2016 Judge: David B. Cohen is an example of not too much substance in a counterclaim.

” The Complaint alleges that defendants had made a payment on October 17, 2014, there remained an outstanding balance of $42,937.50. As plaintiff was still the attorney of record, it sought information from defendants relating to new counsel. As such information was not provided, LFB remained as the attorney of record, and incurred an additional $17,520 in legal fees until relieved by the Court in May of 2015, leaving a total outstanding balance of $60,457.50. ‘ Plaintiff sent and defendants received invoices on July: 28, 2015, September 10, 2015, and April 21, 2016 of the outstanding balance. On October 20, 2016, plaintiff filed the instant matter seeking to recover lost fees and alleged breach of contract, quantum meruit and accounts stated. Defendant answered and asserted six counterclaims for (1) breach of contract, (2) ordinary ; .! negligence, (3) breach of fiduciary duty, (4) professional malpractice, 1 (5) violation of Judiciary : Law, 487, and (6) “reasonable legal fees.” In the instant motion, plaintiff moved for partial summary judgment on the fourth cause of action of account stated and for dismissal pursuant to ; CPLR 3211 (a)(l) and (7) of all counterclaims. Following several attempts at resolving the motion and the action in its entirety, plaintiff has withdrawn the summary judgment portion of this motion and now only seeks the dismissal of the counterclaims portion. ”

“Although defendants have tried to re-write the, counterclaims, the first counterclaim is for ‘I breach of contract arising out plaintiff’s actions that allegedly led to defendants not having ·; i prop~r legal representation. The breach of contract cl~im is dismissed as duplicative of the malpractice counterclaim (Mamoon v Dot Net inc., 135 AD3d 656, 658 [1st Dept 2016]”

“Similarly, the second counterclaim for negligence is dismissed as duplicative of the legal malpractice claim (see Cusack v Greenberg Traurig. LLP, 109 AD3d 747, 748 [1st Dept 2013]. This point is not contested by defendants. In addition defendants have not stated any facts that give rise even to an allegation of negligence. ”

“The fifth cause of action is also dismissed. Juiciary Law § 487 provides recourse only 1! where there is a chronic and extreme pattern of legal delinquency (.Jaroslawicz v Cohen, 12 AD3d 16012004]; see also Dinluder v Med. Liab Mut. Ins. Co., 92 AD3d 480 [1st Dept 2012]. I! Givi;1g claimant every favorable inference, the counterclaims sets forth but one alleged misrepresentation by defendant and accordingly docs i~ot allege a cognizable claim under Judiciary Law § 487 (Solow 1\{‘?f. Corp. v Seltzer, 18 AD3d 399 [1st Dept 2005]. Based upon the forgoing, defendants’ counterclaim for attorney’s fees;is also dismissed. “{

Although the headline may sound exhortatory, it is rather a recitation of when a Judiciary Law § 487 claim may properly lie against a attorney-client, rather than an attorney who represents a client. Witty v 1725 Fifth Ave. Corp.   2017 NY Slip Op 32624(U)   December 12, 2017   Supreme Court, Suffolk County   Docket Number: 02509-17   Judge: Elizabeth H. Emerson tells us that JL 487 will not apply when the client and not the offending attorney happens merely to be an attorney.  The Judge says it much better:

“Judiciary Law § 487 provides that an attorney who is guilty of any deceit or collusion, or who consents to any deceit or collusion, with intent to deceive the court or any party is guilty of a misdemeanor and that the injured party may recover treble damages from such attorney in a civil action. Contrary to the plaintiff’s contentions, Judiciary Law§ 487 only applies to an attorney who is acting in his or her capacity as an attorney. It does not apply to a party who is represented by counsel and who happens to be an attorney (Oakes v Muka, 56 AD3d 1057, 1058). Frampton and Veltry were represented by counsel in the note action. The mere fact that they are attorneys is insufficient to impose liability on them (see , Crown Assocs., Inc. v Zot, LLC, 83 AD3d 765, 768, citing Oakes v Muka, supra). The plaintiff does not specify what documents, if any, were concealed, withheld, or not produced by Frampton and Veltry. The record in the note action reveals that complete copies of the note, the agreement of sale, and the mortgage were attached to the plaintiffs complaint. It, therefore, appears that she was in possession of all of the relevant documents. The plaintiff contends that Frampton and Veltry deceived her by sending her checks for less than the full amount of the monthly payments due under the note. The plaintiff is alleging a breach of contract, specifically a breach of the terms of the promissory note. When, as here, the plaintiff is essentially seeking enforcement of her bargain, she should proceed under a contract theory (see, Sommer v Federal Signal Corp., 79 NY2d 540, 552, citing ClarkFitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389-390). The plaintiff has already pleaded a cause of action for breach of contract in the note action. Accordingly, the third cause of action is dismissed. “

Malpractice, as delineated from mere negligence, is that of a “professional toward a person for whom a service is rendered.  Santiago v. 13 70 Broadway Assoc., L. P., 264 A.D .2d 624 (I 51 Dept 1999). ”  The statute of limitations for all professionals other than physicians is 3 years.  It’s 2.5 years for physicians.  How to prove that the claimed wrong too place more than three years prior to commencement of the malpractice suit is an art.  Judge Kern, in one of her last Supreme Court cases prior to her elevation to the Appellate Division discusses how to do it in Bose v Think Constr. LLC 2017 NY Slip Op 30944(U) May 4, 2017 Supreme Court, New York County Docket Number: 154628/2015 Judge: Cynthia S. Kern.

“”A defendant who seeks dismissal ofa complaint pursuant to CPLR § 321 l(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden ofproving,primafacie, that the time in which to commence an action has expired.” Texeria v. BAB Nuclear Radiology, P.C., 43 A.D.3d 403, 405 (2d Dept 2007). Pursuant to CPLR § 214(6), “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based on contract or tort” must be commenced within three years. Malpractice is the “negligence of a professional toward a person for whom a service is rendered.” Santiago v. 13 70 Broadway Assoc., L. P., 264 A.D .2d 624 (I 51 Dept 1999). It is well-settled that structural engineers are professionals for the purposes ofCPLR § 214(6), see Travelers lndem. Co. v. Zeff Design, 60 A.D.3d 453 (1st Dept 2009), and that “a claim for professional malpractice against an engineer … accrues upon the completion of performance under the contract and the consequent termination of the parties’ professional relationship,” Town of Wawarsing v. Camp, Dresser & McKee, Inc., 49 A.D.3d 1100, 1101-02 (3d Dept 2008). Here, this court finds that the moving defendants’ motion to dismiss plaintiffs’ negligence/malpractice claim is denied on the ground that the moving defendants have failed to establish, primafacie, that such claim is time-barred. In support of their motion, the moving defendants provide the affirmation of their counsel in which he conclusorily affirms that the moving defendants completed their services on the Project by October 2010, before the underpinning work began on the Project. However, such affirmation is insufficient to establish,primafacie, that plaintiffs’ negligence/malpractice claim is time-barred, without some other admissible evidence in support thereof. See Banks v. Auerbach, 56 A.D.2d 819, 819 (!”Dept J 977)(denying defendant’s motion to dismiss on the basis of statute oflimitations on the ground that “[t]he factual basis for defendant’s motion rests entirely on an affirmation of an attorney who [does not have] personal knowledge of the facts …. “) The moving defendants have failed to provide any admissible evidence, such as an affidavit or testimony of someone with personal knowledge, of when the moving defendants actually completed their services on the Project. The moving defendants have provided the affidavit of defendant Pensiero but nowhere in his affidavit does Pensiero affirm that the moving defendants completed their services on a specific date nor does he even discuss the completion of services on the Project. Rather, Pensiero merely affirms that the work performed by the moving defendants was rendered “as outlined in the proposal/contract.” However, an examination of such proposal/contract does not specify a timeframe for completion of the work on the Project. Moreover, plaintiffs provide their affidavit in which they affirm that the moving defendants were still performing their services on the Project as late as August 2012 when they performed a site visit to the Project and prepared a report in accordance with the proposal/contract. “

In this season, gifts are being shuttled around, and many look to receive. Board of Mgrs. of Brightwater Towers Condominium v SNS Org., Ltd.   2017 NY Slip Op 31791(U)   August 24, 2017   Supreme Court, Kings County Docket Number: 503102/16   Judge: Lawrence S. Knipel is an example what happens when one asks correctly for a second chance.  Rather than an Oliver Twist outcome, the Court granted leave to replead.

“The plaintiff Board of Managers of Brightwater Towers Condominium (the plaintiff) moves for an order ( 1) pursuant to CPLR 2221 ( d), for leave to reargue the branch of the motion (the prior motion) of the defendants New York Engineering Associates, P.C., and Neal M. Rudikoff, P.E. (the defendants), which was for an order, pursuant to CPLR 3211 (a) (7), dismissing the plaintiffs original complaint as against them for failure to state a claim, and (2) pursuant to CPLR 3025 (b ), granting it leave to serve its first amended verified complaint. By decision, order, and judgment, dated Feb. 17, 2017 (the prior order), the Court granted the defendants’ prior motion to the extent of dismissing the plaintiffs original complaint as against them for failure to state a claim. The plaintiffs original complaint, dated Mar. 3, 2016, asserted, as against the defendants, a single cause of action for professional malpractice (see Original Complaint, iii! 76-89 [Second Cause of Action]). The original complaint, as more fully set forth in the margin, 1 did not allege that “the underlying relationship between the parties [was] one of privity of contract, or that the bond between them [was] so close as to be the functional equivalent of privity” (Perfetto v CEA Engineers, P.C., 114 AD3d 835, 836 [2d Dept 2014]). In its opposition to the defendants’ prior motion, the plaintiff, by counsel, raised the theory of privity but did not, at that time, move for leave to amend its original complaint to plead that theory…”

“The prior order, insofar as it addressed the plaintiffs claims against the defendants as pleaded in the original complaint, was correct, albeit with one caveat. It should have granted the plaintiff leave to replead. Accordingly, leave to reargue is granted and, upon reargument, the prior order is adhered to, subject to granting the plaintiff leave to rep lead as more fully set forth in the decretal paragraphs below. The remaining branch of the plaintiffs motion which is for leave to serve its first amended complaint is decided as set forth in the decretal paragraphs below. “

Judiciary Law § 487 cases are very very hard to bring.  In the First Department they are even harder to maintain.  When such a case is brought pro-se, the chances of viability plummet.  So it was with Rondeau v Bargman  2017 NY Slip Op 32256(U)  October 19, 2017
Supreme Court, New York County  Docket Number: 153727/16  Judge: Jennifer G. Schecter.  The decision starts with a tone setting fact.  Plaintiff wanted to sue the New York Knicks for slander. It then tells us that an ad was placed for an attorney.  This scenario promises disaster.  It ended disastrously.

“In 2010, Arthur Rondeau and his personal attorney determined that Rondeau would sue Allan Houston and the New York Knickerbockers (Knicks), for among other things, slander (Houston Lawsuit) (Affirmation in Support [Supp], Ex A [Complaint] at ¶ 12). Rondeau’s personal attorney, who was not an expert in this area of law, placed an ad on a website looking for a litigator who was experienced with suing for defamation ( id. ) . Bargman and at least one other lawyer responded to the ad. Rondeau’s personal attorney interviewed the responding lawyers and informed Rondeau that both seemed suitable.

On or about May 3, 2010, Rondeau met Bargman who “at all times presented himself as a hard-nosed litigator and expert negotiator, ready to file the Houston Lawsuit at a moment’s notice. The impression that Bargman gave to Rondeau made [him] decide to hire Bargman not only because of his purported background and purported successful current litigation practice but because Bargman would bring an aggressiveness to Rondeau’s team that was necessary in light of years of attempts . . to resolve his differences with Houston and/or the Knicks without litigation” (id. at ¶ 15). ”

“On January 24, 2011, after Rondeau, his personal attorney and Bargman went back and forth with drafts of the complaint, Bargman filed a version of the complaint with numbers out of sequence and “important corrections that had been made in the drafts of the complaint subsequent to the misnumebered draft were lost” (id. at ¶26). On March 25, 2011, the day that a response to the complaint was due, Bargman informed Rondeau that he planned to withdraw as counsel. In April 2011, he moved to be relieved and, in the motion, “divulged confidential, sensitive and/or privileged information” that was used against Rondeau in the Houston Lawsuit (id. at  34).”

“Rondeau contends that if he had been aware that on a motion to dismiss all statements in the complaint are considered true and if he knew about renewal or reargument, he could have proceeded with some of his causes of action (Complaint at  36) . He maintains that if Bargman had told him that he could have moved for sanctions based on false statements made in the motion to dismiss, “it would have alerted the court to the defamatory nature of the statements Instead, Rondeau was demonized in front of both the Trial Court and the Appellate Division, First Department” (id. at  37) Rondeau maintains that he incurred $300,000 in expenses related to having to continue the Houston Lawsuit on his own (id. at  49). ”

“Rondeau’s causes of action based on violation of Judiciary Law § 487 fare no better as Rondeau has not sufficiently alleged facts demonstrating “either a deceit that reaches the level of egregious conduct or a chronic and extreme pattern of behavior” on the part of defendant (see Savitt v Greenberg Traurig, LLP, 126 AD3d 506, 507 [1st Dept 2015); Seldon v Lewis Brisbois Bisgaard & Smith LLP, 116 AD3d 490, 491 [1st Dept 2014), lv dismissed 25 NY3d 985 [2015)). Rondeau, moreover, had an opportunity to address all of the allegedly “false statements [that Bargman made] in an attempt to deceive the court into allowing him to withdraw” at oral argument in opposition to the motion to withdraw (Complaint at  32; see e.g. Rondeau v Houston, Index No 650198/11, NYSCEF Doc No 19, Tr at 4-5). The court heard everything that Rondeau had to say in opposition–much of which is the basis of his causes of action–reviewed email correspondence between Rondeau and Bargman and ultimately granted Bargman’s motion to withdraw because Bargman had not been fully paid and because of the “breakdown in the relationship” (id. at 5). The allegations here do not constitute egregious conduct sufficient to implicate Judiciary Law§ 487. “

Arbitration clauses in professional malpractice settings are not absolute, but they can be very persuasive to Courts.  When presented with defenses to an arbitration clause, or to other clauses contained in the agreement between client and professional, the Court may take up the issue and decide it, or it can send the issue to the arbitrator, as it did in Collins Bros. Moving Corp. v Pierleoni  2017 NY Slip Op 07586  Decided on November 1, 2017  Appellate Division, Second Department.

“On April 3, 2014, the plaintiffs commenced this action against Anchin, Phillip M. Ross, CPA, Christopher Kelly, CPA, Daniel Stieglitz, CPA, Vera Krupnick, CPA, Riz Ann F. Diva, CPA, Bridget Kralik, CPA, Amy Berger, CPA, and David Albrecht, CPA (hereinafter collectively the accounting defendants), among others, to recover damages for professional negligence, fraudulent concealment, aiding and abetting fraud, breach of fiduciary duty, breach of contract, violation of General Business Law § 349, and negligent misrepresentation. The accounting defendants moved pursuant to CPLR 7503(a) to, inter alia, compel mediation and arbitration of the causes of action asserted against them, pursuant to an arbitration provision in the letter agreements, and to bar the plaintiffs from “alleging any cause of action in arbitration based upon any events that occurred prior to April 3, 2011.” In opposition to the accounting defendants’ motion, the plaintiffs argued, among other things, that the limitations period was tolled by the continuous representation doctrine. By order dated February 18, 2015, the Supreme Court, inter alia, granted the accounting defendants’ motion, providing, among other things, that “any claims against the accounting defendants arising before April 2011 are barred from being heard in the mediation or arbitration.” The plaintiffs appeal.”

“Here, in opposition to the accounting defendants’ motion to bar arbitration of claims that were untimely under the three-year limitations period provided in the letter agreements, the plaintiffs did not contend that the accounting defendants had failed to meet their prima facie burden. Instead, the plaintiffs relied entirely on the continuous representation doctrine. In so doing, the plaintiffs alleged, in conclusory fashion, that “[t]he parties mutually contemplated ongoing representation following each annual review,” and that Anchin “had a continuing obligation to remedy defects in any consolidated financial statements.” The plaintiffs also submitted an affidavit of Webers, in which he averred, without any specificity, that “[r]evisions of prior years[‘] financial statements were routinely performed.” The plaintiffs’ evidence failed to raise a question of fact as to whether the limitations period contained in the letter agreements was tolled by the continuous representation doctrine (see Williamson v PricewaterhouseCoopers LLP, 9 NY3d at 9; Cusimano v Schnurr, 137 AD3d 527, 531; cf. Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 790; Bronstein v Omega Constr. Group, Inc., 138 AD3d 906, 908; Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d at 196). Thus, the Supreme Court correctly determined that the continuous representation doctrine was inapplicable.

The accounting efendants failed, however, to submit any evidence that would have established which of the plaintiffs’ causes of action were untimely. The letter agreements provided [*2]for a three-year limitations period, as follows: “No action, regardless of form, arising out of the services under this agreement may be brought by either of us more than three years after the date of the last services for the year in dispute provided under this agreement.” Because the record before us does not establish the relevant “last services” dates, the determination of those dates and the consequent timeliness of the plaintiffs’ various causes of action must be made in further proceedings.”

Mistakes, mistakes, shoddy performance!  This is what malpractice cases are all about.  However, litigation over these issues is rarely simply about the mistake.  It’s the surround that matters so much more.  The “surround” ?  What we mean by this is the more subtle issues such as proximate cause, professional strategy, etc. Vitale v Koenig  2017 NY Slip Op 51557(U)  Decided on October 12, 2017  Supreme Court, New York County  St. George, J. illustrates this concept.

“The undisputed facts, which this Court has condensed from its decision in motion sequence 004, are as follows: In late 2001, Joseph Vitale formed a company which he named Titan Electrical and Elevator Contracting Company (Titan I).^[FN1] Mr. Vitale was the sole owner of the company. In December 2004, Mr. Vitale formed Titan Electrical Company of New York (Titan II). The business became operational after, on August 31, 2005, Mr. Vitale and Mr. Sonzone entered into a partnership. In his capacity as an electrician, Mr. Vitale’s business had worked with Mr. Sonzone’s and his general contracting business Sunrise Contracting. The parties’ partnership agreement provided that the partners would divide the shares of the company and its profits and liabilities equally. Mr. Sonzone took charge of the administrative and financial aspects of the corporation, contributing funds as necessary. The parties agreed that, in addition, Mr. Sonzone would give money to Mr. Vitale and Titan I so that the company could clear up its debts and pay back taxes. The parties dispute whether this money was a loan or was part of the agreement that Titan II would pay the expenses and liabilities of Titan I. In March 2007 Titan II ceased its operations.

At some point after the dissolution of Titan II, the former partners accused each other of fiscal improprieties and numerous other violations of the agreement. Each alleged that, through a variety of methods, the other diverted profits from Titan II and placed them into his own hands. In Vitale v Sonzone (Index No. 111440/2011 [Sup Ct NY County]), Mr. Vitale and Titan II sue [*2]Mr. Sonzone, his contracting business, and other defendants.

The current lawsuit, which is joined for discovery purposes with Vitale v Sonzone, is against Mr. Koenig, who was Titan II’s accountant. Here, plaintiffs assert that in June 2007 Mr. Vitale asked defendant to perform an accounting of Titan II. Plaintiffs states that in response Mr. Vitale simply received a few pages of handwritten notes with the title “Audit.” Allegedly, Mr. Koenig conceded that he did not review the corporate American Express card bills, which would have shown whether Mr. Sonzone made personal charges or otherwise improper charges on his corporate card, along with other bills from the company. Instead, he stated that he relied entirely on the limited papers Mr. Sonzone had provided to him. Moreover, plaintiffs state, defendant refused to evaluate these other charges when Mr. Vitale provided him with the pertinent records. Plaintiffs claim that defendant received more than $7,000.00 for his improper tax and audit work. Justice Billings, who formerly presided over this case, issued an order in 2011 which dismissed plaintiffs’ second, third, and fourth causes of action. Thus, all that remains are the first cause of action, for professional negligence and accounting malpractice, and the third cause of action, for aiding and abetting Mr. Sonzone’s breach of fiduciary duty. Plaintiffs seek damages of at least $120,000.00.”

“In Schmidt v One New York Plaza (153 AD3d 427, 428 [1st Dept 2017]), the First Department reaffirmed the standard of review for a summary judgment motion:

On a motion for summary judgment, the moving party has the initial burden of establishing its entitlement to judgment as a matter of law with evidence sufficient to eliminate any material issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1985]). The facts must be viewed “in the light most favorable to the non-moving party” (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). Summary judgment should not be granted where there is any doubt as to the existence of triable issues or there are any issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Utilizing this standard, the Court dismisses plaintiffs’ first cause of action. A claim of accounting malpractice or negligence not only “requires proof that there was a departure from accepted standards of practice” but requires a showing “that the departure was the proximate cause of the injury” (D.D. Hamilton Textiles, Inc. v Estate of Mate, 269 AD2d 214, 215 [1st Dept 2000]). Absent a showing of proximate cause, the case for professional negligence must be dismissed (See Charlap v BDO Seidman, 251 AD2d 146, 147 [1st Dept 1998]). Here, defendant [*4]persuasively argues that the claim relating to the 2007 “audit” occurred after the alleged misappropriations of funds and dissolution of the company. Thus, the Court need not reach the issue of defendant’s competence with respect to the 2007 audit.

As for the alleged malpractice relating to the tax returns, defendant was entitled to rely in good faith on the records his clients provided to him, without the need for verification (CFR § 10.34 [d]). Plaintiffs have not set forth facts that show defendant, who was hired by Titan II in a limited capacity, should not have trusted the Quickbooks which Mr. Sonzone provided. In fact, Mr. Vitale himself did not mistrust Mr. Sonzone initially.

Moreover, plaintiffs’ third cause of action must be dismissed because plaintiffs have not raised more than speculative allegations of collusion (See Lichtman v Mount Judah Cemetery, 269 AD2d 319, 321 [1st Dept 2000]). The questions of fact plaintiffs allege relate to the accounting system Mr. Sonzone employed and to the use of credit cards and the payroll system. These were not within the control of defendant, who prepared the taxes but did not create the accounting system for the company. Nor is he chargeable with knowledge simply because Mr. Sonzone retained him for tax services for himself and some of his other businesses.”

For a well written discussion of the elements of continuous representation, we suggest that RJR Mech. Inc. v Ruvoldt  2017 NY Slip Op 31232(U)  June 8, 2017  Supreme Court, New York County  Docket Number: 158764/2015  Judge: Jeffrey K. Oing serves as a prime example.

” As in the first action, the. complaint in the second action alleges that the Norwest Bank action resulted in a private auction iri which the Maspeth Property was sold, with the proceeds distributed· pursuant to a co~rt order: $424,790.42 to plaintiff and $1,450,992.89 to EMV, the prior owner of the Maspeth Property (Verified Complaint.”

“Plaintiff’s new allegations are as follows. Plaintiff alleges that not only did Ruvoldt represent it in the Norwest Bank action,.but he also represented it in another action commenced in 2004 against it and related to the Maspeth Property: EMV Realty Corp. v RJR MechanicaL- Inc., ‘Index No. 14778/2004 (Sup Ct, Queens County) (the “EMV Realty actionn). Plaintiff alleges it retained Ruvoldt to represent it and one of its principalsj Roy Leibo~itz (“Leibowitzn) in the EMV Realty a6tion (Verified Complaint, !! 14-15). The EMV Realty action has laid dormant since 2005, save for a single 2011 substitution of counsel ”

“Notwithstanding the motion to withdraw, plaintiff further alleges that defendants continued representing it and that on March 8, 2011 Espinosa informed Karpman of his continuing discussion with counsel concerning an extension of the time to appeal and settle the Nortwest Bank action (Verified Complaint, ‘1I 28) .· Plaintiff contends that this allegation is also supported by a March 7, .2011 letter sent from Espinosa to Karpman and Leibowitz stating that defendants would take steps to “protect” plaintiff’s rights (Pl. Memo of Law in Opp., p. 6; Espinosa Affirm., Ex. E). ”

“Pursuant to CPLR 214(6), an action for legal malpractice must be commenced within three years from the date of accrual (Shumsky v Eisenstein, 96 NY2d 164, 166 [2001]). A legal malpractice claim accrues when relief can be obtained in court (McCoy v Feinman, 99 NY2d 295, 301 [2002]) and from the time the actual injury stemming from the malpractice occurs, not when it is discovered (Id.). Here, defendants argue that any alleged failure to prepare for trial would have had to occur befor~ July 30, 2010, which is when the Supreme Court, Queens County, issued its distribution decision. Defendants argue that because more than three years elapsed between July _2010 and the filing of RJR’s first action on March 14, 2014, the failure to prepare allegation is time-barred by the statute of limitations. ”

“The continuous representation doctrine, which is the offspring of the continuous treatment doctrine, recognizes that a layperson seeking legal assistance “[h]as a right to repose confidence ~n the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services· are rendered” (Greene v Greene, 56 NY2d 86, 94 [1982]; Matter of Lawrence, 24 N~3d 320, 342-343 [2014]). “The continuousrepresentation doctrine tolls a statute of limitations where there is a mutual understa~ding of the need for further representation on the specific subject matter underlying the malpractice claim” (Zorn v Gilbert, 8 NY3d 933, 934 [2007] [internal quotations and citations omitted]). The two prerequisites needed to invoke a continuous representation toll are 1) a claim of misconduct regarding the mann~r in which the profession~l services were performed,· and 2) the ongoing provision bf professional services.with respect to the contested matter or transaction (Matter of Lawrence, 24 NY3d at 342). The ongoing representation must be specifically related to the matter in which the attorney committed the alleged malpractice (Id.; Johnson v Proskauer Rose LLP, 129 AD3d 59, 68 [1st Dept 2015]). The continuous representation doctrine is inapplicable where “plaintiff’s allegations establish defendant[s’] failures within a continuing professional relationship, not a course of representation as to the particular problems (conditions) that gave rise to plaintiff’s malpractice claims” (Id. at 341-342 [internal quotations and citations·omitted]). ”

“To the extent plaintiff relies on the EMV Realty action to toll the statute of limitations, plaintiff’s arguments are unavailing. Since 2011, when Loanzan Sheikh was substituted as · counsel, ther~ has been no activity in the EMV Realty action and, prior to that, since 2005, there had been no activity before the substitution. Contrary to plaintiff’s assertion, it would not have been under the reasonable belief that defendants were / actively representing it in the EMV Realty action. Further, and more import~ntly, in order for a legal malpractice claim to be subject to the continuous representation toll, the ongoing representation must be directly linked to the alleged malpractice. Given that plaintiff has failed to plead with sufficiency that the EMV Realty action is related to the underlying allegations of legal malpractice, the continuous representation doctrine cannot be transferred to the second action based on the EMV Realty action. Based on the foregoing, plaintiff’s legal malpractice claim is time-barred. ”