Attorneys and attorney fees inhabit such a large portion of the legal malpractice universe, and indeed the legal practice universe itself, that it is a tautology to say that attorney fees are always the subject of attorneys’ attention.

The story in Matter of Ginsburg 2016 NY Slip Op 07733 Decided on November 17, 2016  Appellate Division, Third Department starts with a suicide, one of many at this particular bridge over a gorge in Ithaca by a Cornell freshman.  The case then devolved into a fight over legal fees and claims of violation of Judiciary Law § 487.

“On February 17, 2010, Bradley Marc Ginsburg (hereinafter decedent), then a freshman at respondent Cornell University in Tompkins County, jumped to his death from the Thurston Avenue Bridge — one of several bridges extending across the gorges located on or near Cornell’s campus. The bridge in question, which spans Falls Creek Gorge and connects two portions of Cornell’s campus, is owned by respondent City of Ithaca. Petitioner, who is both decedent’s father and an attorney licensed to practice in this state, was granted letters of administration in May 2011 and thereafter retained respondent Leland T. Williams as counsel for the estate. In late 2011, Williams commenced an action upon petitioner’s behalf against, among others, Cornell and [*2]the City of Ithaca in the United States District Court for the Northern District of New York. The complaint set forth 14 causes of action sounding in, among other things, wrongful death and premises liability and sought damages in the amount of $180 million, including $12 million in punitive damages.

After District Court dismissed the punitive damages claim and all claims against those Cornell representatives or employees named in their individual capacities, petitioner terminated Williams’ representation and retained respondent McCallion & Associates, LLP (hereinafter the firm) as counsel ^[FN1]. Thereafter, Kenneth F. McCallion (hereinafter McCallion) — a principal therein — entered into settlement negotiations with Cornell and the City of Ithaca upon petitioner’s behalf. After much discussion, the parties devised a proposed settlement of the wrongful death claim — specifically, that petitioner would accept a monetary sum from the City of Ithaca and, as to Cornell, would agree that a scholarship would be established in decedent’s name ^[FN2]. While McCallion was not opposed to this resolution, he advised petitioner via email that, “[b]efore [he] sign[ed] onto any settlement proposal,” petitioner and the firm would need to “reach an understanding as to the allocation of any settlement funds” — namely, that “the balance of the net cash component of the settlement,” then anticipated to be $200,000, would be allocated to the firm as counsel fees. In response, petitioner advised District Court that he, in his capacity as co-counsel, would be handling all further negotiations, and McCallion was excluded from the settlement conferences that followed.”

“In September 2014, petitioner entered into stipulations of settlement with Cornell and the City of Ithaca resolving the wrongful death claim. Specifically, the City of Ithaca agreed to pay $100,000 in settlement of the District Court action against it, and Cornell agreed to establish a perpetual scholarship in memory of decedent. Although documentation in the record reflects that such scholarship, if funded by a private donor, would have required an endowment of approximately $1.6 million, the stipulation of settlement provided that the scholarship would be established “using existing financial aid funds” and, inasmuch as Cornell was neither “allocating any new money” to the scholarship nor otherwise making any payment to petitioner, the scholarship itself had “no monetary value” — except to the student recipients thereof. District Court thereafter signed off on the respective stipulations of settlement.

In November 2014, petitioner sought leave in Surrogate’s Court to compromise the wrongful death claim against Cornell and the City of Ithaca. In conjunction therewith, petitioner asked that both Williams and the firm (hereinafter collectively referred to as respondents) be denied counsel fees — essentially contending that Williams and McCallion each had engaged in conduct that was contrary to the interests of the estate. Respondents opposed petitioner’s requests and cross-moved to, among other things, disapprove the settlement agreements and sanction petitioner in accordance with Judiciary Law § 487.”

“Rather, as Surrogate’s Court appropriately found, petitioner — in his representative capacity as the administrator of decedent’s estate — received in settlement from Cornell only the sentimental, “symbolic or moral value” of the scholarship established in decedent’s name. As the scholarship itself clearly was not an asset of decedent’s estate, Surrogate’s Court did not abuse its discretion in computing respondents’ respective counsel fees based solely upon the $100,000 monetary settlement received from the City of Ithaca. To hold otherwise not only would ignore the plain language of the stipulation of settlement with Cornell but, further, would misconstrue the nature of the scholarship itself by assigning — to decedent’s estate — a monetary value or benefit that exists only with respect to the scholarship’s actual recipients. Adopting respondents’ valuation analysis also would obligate decedent’s estate, which ultimately received less than $4,000 in settlement proceeds and otherwise is devoid of assets, to pay a six-figure bill for counsel fees — a result that hardly can be characterized as reasonable, equitable or just. Respondents’ remaining contentions, to the extent that they do not lie outside the jurisdiction of Surrogate’s Court in the first instance (see SCPA 201), have been examined and found to be lacking in merit.”

Breslin v Raich, Ende, Malter & Co., LLP 2016 NY Slip Op 32015(U) July 25, 2016 Surrogate’s Court, Nassau County Docket Number: 290592J Judge: Margaret C. Reilly is the story of a really, really big estate and how multiple professionals are said to have committed professional negligence.

“Robert Frankel (the decedent) died on April 21, 1995, survived by his wife, Adele Frankel-Loeb, and three adult children, Wendy Frankel, Richard Frankel and Lynn Frankel Fleetwood (Wendy, Richard and Lynn, collectively, the objectants). Under the terms of decedent’s will, each of the objectants is a beneficiary under Article III of the will and a beneficiary of 1/3 of decedent’s residuary estate. Prior to his death, the decedent owned a chain of stores and was a real estate investor and manager. The decedent and Breslin jointly owned a number of real estate ventures, and had personally and jointly guaranteed related bank debt of approximately $100,000,000.00. At the time of the decedent’s death, some of these ventures were in financial distress. Shortly after the death of the decedent, an arrangement was reached among the preliminary executors of the decedent’s estate, Gerald Deutsch, Stephen Levy, Breslin, and the decedent’s children, whereby Breslin’s family purchased control over a portion of the decedent’s assets, and reserved the right to acquire the remaining assets for $2,500,000.00 (the Weary Option). Pursuant to this agreement, on December 11, 1995, Breslin was appointed as successor executor of the estate, taking over management of the real estate ventures that previously had been jointly owned by Breslin and the decedent, as well as the decedent’s assets and properties. On September 12, 2012, Breslin filed a judicial accounting in which he sought settlement of his account, approval of legal fees, and his release and discharge, individually and as successor executor. The account shows total principal charges of $18,510,068.89 and income charges of $6,813,228.50, with total income of $5,478,074.46 on hand as of March 31, 2010.”

“Breslin hired Tenzer in 1995, when Tenzer was associated with a prior accounting firm, and continued to utilize Tenzer’s services after Tenzer joined Raich Ende as a principal and accountant in 2002, pursuant to a retainer letter, dated November 7, 2002. The defendants, among other services, were to prepare a final accounting for the Frankel estate. On February 22, 2012, the defendants produced the accounting, which covered the period from April 21, 1995 through March 31, 2010.”

“[M]alpractice in the statutory sense describesthe negligence of a professional toward the person for whom he rendered a service . . . an action for malpractice springs from the correlative rights and duties assumed by the parties through the relationship” (Cubito v Kreisberg, 69 AD2d 738, 742 [2d Dept 1979]). A plaintiff seeking to recover damages for legal malpractice must “show that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney’s breach of this duty caused the plaintiff to suffer actual and ascertainable damages” (Gaskin v Harris, 98 AD3d 941, 942 [2d Dept 2012] [citations omitted]). In Breslin’s complaint, he states that the defendants were retained “to perform a variety of accounting, audit, tax, and consulting services with regard to Breslin’s role as both a major creditor and Successor Executor of the Frankel Estate.” Breslin asserts that “for many years prior to December 1995, Tenzer had already provided substantial legal, accounting and tax services to Breslin . . .” and that “Tenzer repeatedly induced Breslin to repose an extremely high degree of trust and confidence in Tenzer with respect to numerous legal, tax and accounting matters . . . .” In his claim for legal malpractice, Breslin asserts that Tenzer breached his “duty to exercise due professional care and to render reasonable and competent legal advice and legal services . . . .  The court finds that the plaintiff’s complaint states a cause of action. The defendants’ motion to dismiss the cause of action for legal malpractice is DENIED. ”

Analogy is a familiar tool in legal analysis.  An analogy to legal malpractice insurance coverage law helps to understand the holding in Matter of Neuberger Berman Trust Co., N.A.  2016 NY Slip Op 32277(U)  November 10, 2016  Surrogates’s Court, New York County  Docket Number: 1983-0735 D Judge: Nora S. Anderson.

One of the more prominently litigated features of legal malpractice insurance is the “notice” issue.  Attorneys are required, under their policies, to notify the carrier at the earliest possible opportunity about a claim, and even about a potential claim.  Carriers have successfully declined and avoided coverage based upon “late notice.”

In this case, the law firm wishes to avoid disclosing certain documents, and claims them to be “work-product” prepared in contemplation of litigation.  They say that as soon as a possible error became known, they were on notice, and everything created after that date is privileged.

“Decedent Irma Croll died in 2001. In her will, she named NB and Schlesinger as coexecutors of her estate; NB and Schlesinger were also co-trustees of her IV trust. HGG served as counsel to NB and Schlesinger in the administration of the estate and the trust. By letter dated December 9, 2011, counsel for three of the trust beneficiaries informed NB that the Generation Skipping Transfer (“GST”) tax may have been incorrectly calculated on the federal estate tax return filed in 2003, resulting in a tax overpayment. After confirming that the estate had overpaid its taxes by $2.9 million, NB commenced the Supreme Court action transferred here against HGG and Schlesinger’s estate. While not disputing the tax error, HGG moved to dismiss NB’s malpractice claim as time-barred. Meanwhile, NB petitioned for judicial settlement of its accounts as co-executor and as co-trustee. When Schlesinger died on April 24, 2012, the fiduciary of his estate petitioned for judicial settlement of Schlesinger’s account as cotrustee.”

“Third, HGG argues that it is not required to produce documents created after December 9, 2011, because, on that date, counsel for the beneficiaries first raised concerns over the GST tax, at which point HGG “became the object of a potential malpractice claim.” HGG asserts that all documents created after that date constitute work-product prepared in anticipation oflitigation. NB counters that HGG cannot reasonably have anticipated litigation simply based on the letter from beneficiaries’ counsel, which merely requested an explanation as to how the tax was calculated and noted their inability to “reconcile the numbers.” NB asserts that it was not until May 2012, when NB and HGG received another letter from the beneficiaries’ counsel pointing to the incorrect GST calculation and directing NB and HGG to preserve all relevant documents, that HGG had a reasonable basis for anticipating litigation. In support of its claim that HGG was still acting as its counsel during March and April of 2012, NB submits e-mails between NB and HGG during that time regarding the tax calculation. However, those e-mails merely demonstrate a joint effort to respond to the beneficiaries’ inquiry and do not necessarily lead to the conclusion that HGG was still representing NB. After receiving the first letter from beneficiaries’ counsel, HGG could have reasonably anticipated that it might be subject to liability on the tax issue. Therefore, the court cannot discount the possibility that an otherwise responsive document generated after December 9, 2011, might be deemed privileged. The court directs HGG to produce all documents and ESI that are either responsive to the subpoena duces tecum or subject to the court’s 2015 order. To the extent that HGG withholds any document on the ground that it is privileged, it must submit a privilege log containing the identifying information set forth in CPLR 3122(b ). ”

Professionals get one kind of statute of limitations; all others get a different kind.  That is the lesson of Brown v Deck  2016 NY Slip Op 30337(U)  February 26, 2016  Supreme Court, New York   County  Docket Number: 152769/2015  Judge: Cynthia S. Kern.  For professionals, the statute starts to run on the date of the negligence; for others, not so much.

“The relevant facts are as follows. Plaintiff Robert Brown contracted with defendants to design and build a deck at plaintiffs’ residence. In 2005. defendants completed construction of the deck. On or about July 10. 2012, when Mr. Brown leaned against a portion of the deck rail,  the rail collapsed and he fell approximately fifteen feet to the ground, sustaining injuries. Plaintiffs allege that the deck rail was improperly attached to the deck by an insufficient number of screws which were of inadequate length. On or about March 5. 2015. within three years of when plaintiff Brown was allegedly injured, plaintiffs commenced the instant action. alleging. inter alia. a personal injury cause of action for negligent and defective design and construction.

Defendants moved to dismiss plaintiff Robert Brown’s personal injury cause of action for negligent design and construction solely on the ground that it was barred by the three year statute of limitations for non-medical malpractice claims pursuant to CPLR s 214(6). Pursuant to CPLR § 214(6). the statute of limitations for non-medical. dental. or podiatric malpractice is three years. whether the action is based in contract or tort. The court denied the motion to dismiss on this ground based on the cou11·s finding that defendants had failed to make a prima facie showing that they were an architect or other professional to whom CPLR § 214(6) would apply.”

“Defendants now argue that this court erred in its determination because defendants are entitled to dismissal of plaintiffs’ cause of action for negligent design and construction pursuant to CPLR ~ 214(6) because the accrual date for statute of limitations purposes is completion of performance, the statute of limitations for negligent design and construction claims is three years after completion of performance and plaintiffs did not commence this action within three years after completion of performance. In making this argument. the defendants rely on two Court of Appeals decisions which were cited in their original papers. See City School District of Newburgh ‘” Hugh Stubbins & Associates, Inc. 85 N. Y 2d 535 (1995): Cabrini Medical Center v.  Desina,  64 N.Y.2d 1059 (1985). However. these cases are completely inapplicable to the present case. Initially. neither of these cases hold, as defendants argue. that contractors are professionals for the purposes of determining the applicability of the statute of limitations contained in CPLR ~ 214(6). Moreover. these cases do not address what the statute of limitations is for a personal injury claim. which is what plaintiff is asserting in this action. and when a claim for personal injury accrues for statute of limitations purposes. In both Citv School Dis1rict of Newhurgh and Cabrini Medical Center. the issue before the court was the proper accrual date for a cause of action against a contractor for defective construction where the plaintiff is asserting a claim for damage to real or personal property arising out of the contractual relationship. ”

“However, as the Court of Appeals explicitly noted in Newburgh. the rule that a cause of action for negligent design accrues upon completion of the construction is only applicable where the cause of action is for damages to property which has its genesis in the contractual relationship between the parties and it does not apply to actions for personal injury. It is well established that a cause of action for personal injury, which is what plaintiff is asserting in this action, has a three year statute of limitations which accrues when the plaintiff is injured. See CPLR § 214 (5) (action to recover damages for a personal injury is three years); Snyder v. Town Insulation, Inc., 81 N.Y.2d429 (1993) (cause of action for personal injury accrues on date of injury). Moreover, defendants have still not made a showing that CPLR § 214(6) applies to this action as they have not made any showing that defendants are professionals. ”

In the professional malpractice world, which takes in all professionals other than physicians, we see the evolution of principals from medical malpractice to other professional malpractice claims.  As an example, continuous treatment evolved into continuous representation.  This process and how it is applied is discussed in  Jefferson Apts., Inc. v Mauceri  2016 NY Slip Op 26230 [52 Misc 3d 1012]  July 25, 2016  Ritholtz, J.

“The “continuous treatment” doctrine originated in medical malpractice cases to toll the running of the statute of limitations. This judicial exception was first encountered in 1902 in Gillette v Tucker(67 Ohio St 106, 65 NE 865 [1902]). The Gillette court held that using the surgery date as the starting point for calculating the statute of limitations would improperly burden the victim by forcing her to sue the surgeon while her treatment continued or forgo her cause of action. (Gillette, 67 Ohio St at 129, 65 NE at 871.) Over 100 years later, the “continuous treatment” doctrine, adopted by the New York courts, has evolved to cover not only medical malpractice, but, under the name of the “continuous representation” doctrine, has been extended to other professions and occupations, such as accountants.

Proper analysis and application of the “continuous representation” doctrine tend to produce just results, as opposed to mindless invocation of a limitations defense. The instant motion deals, inter alia, with the application of the “continuous representation” doctrine as it relates to the tolling of the statute of limitations in an action alleging accountant or auditor malpractice.”

“On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is time-barred, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see Bill Kolb, Jr., Subaru, Inc. v LJ Rabinowitz, CPA, 117 AD3d 978 [2014]; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017 [2010]). The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable or whether the action was actually commenced within the applicable limitations period (see Kitty Jie Yuan v 2368 W. 12th St., LLC, 119 AD3d 674 [2014]; Beizer v Hirsch, 116 AD3d 725 [2014]; Williams v New York City Health & Hosps. Corp., 84 AD3d 1358, 1359 [2011]).

Negligence claims made against a nonmedical professional, whether based in tort or contract, are governed by a three-year statute of limitations (see CPLR 214 [6]; see also Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538 [2004]; Chase Scientific Research v NIA Group, 96 NY2d 20 [2001]; Ackerman v Price Waterhouse, 84 NY2d 535 [1994]). As to the accounting malpractice claim, absent fraud, such a claim accrues when the harm occurs, which is “when all the facts necessary to the cause of action have occurred,” regardless of whether the plaintiff has yet become aware of the error (see Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994], supra; Mitschele v Schultz, 36 AD3d 249, 252 [2006]). Here, the alleged transactions on January 8, 2010, January 25, 2010 and February 9, 2010 would have been disclosed as a receivable in the financial statement for the year ending June 30, 2010, which was issued on February 7, 2011. With regards to these claims for auditing/accounting services rendered prior to June 17, 2012, they are dismissed.

The continuous representation doctrine tolls the running of the statute of limitations on a claim arising from the rendition of professional services only so long as the defendant continues to advise the client “in connection with the particular transaction which is the subject of the action and not merely during the continuation of a general professional relationship” (Zaref v Berk & Michaels, 192 AD2d 346, 348 [1993] [citations omitted]; see also Transport Workers Union of Am. Local 100 AFL-CIO v Schwartz, 32 AD3d 710, 713 [2006]; CLP Leasing Co., LP v Nessen, 12 AD3d 226, 227 [2004]; Dignelli v Berman, 293 AD2d 565, 566 [2002]). Thus, unless services relating to the particular transaction sued upon were rendered within the limitation{**52 Misc 3d at 1019} period, even the defendant’s “general and unfettered control of [the plaintiff’s] financial, tax and investment affairs . . . [is] insufficient to sustain the timeliness” of the action (Zaref, 192 AD2d at 348). Stated otherwise, where a professional advises a client in “a series of discrete and severable transactions” (Parlato v Equitable Life Assur. Socy. of U.S., 299 AD2d 108, 115 [2002], lv denied 99 NY2d 508 [2003]), the performance of services in each successive transaction does not serve to toll the running of the statute of limitations on any claim arising from the prior transaction (see Booth v Kriegel, 36 AD3d 312, 314 [2006]).

In this case, plaintiff does not dispute that the statute of limitations would be three years prior to the commencement of this action on June 17, 2015. Plaintiff disputes whether the financial statement for the period of July 1, 2010 through June 30, 2011 (the 2011 Financial Statement), prepared by Mauceri, is within the statutory period. Plaintiff argues that the claim for the 2011 Financial Statement accrued on the day Mauceri issued it to the Board, on or about September 28, 2012. Page one of Mauceri’s report dated September 28, 2012, provides, as herein relevant, as follows:

“”In my opinion, the financial statements and schedules referred to above present fairly, in all material respects, the financial position of The Jefferson Apartments, Inc., as of June 30, 2012 and June 30, 2011, and results of its operations for the years then ended in accordance with accounting principles generally accepted in the United States of America.”

Big law firm gets hired to guide an unusual real estate tax deduction which goes wrong.  How do the timelines for legal malpractice, IRS tax determinations, tax years, and the filing of deeds interact?

BLDG Christopher LLC v Herrick Feinstein LLP  2016 NY Slip Op 32237(U)  October 31, 2016  Supreme Court, New York County  Docket Number: 651795/12  Judge: Barry Ostrager gives both the history and the analysis of how the statute is applied, including a discussion of the only exception to the onset of the statute of limitations.

“Pursuant to CPLR § 214(6), the statute of limitations for legal malpractice is three years, “regardless of whether the underlying theory is based in contract or tort.” Similarly, the statute of limitations for the breach of fiduciary duty claim is three years, as it is based on some of the same facts as the malpractice claim and, like the malpractice claim, seeks monetary damages rather than equitable relief. See Nichols v Curtis, 104 AD3d 526, 527 (1st Dep’t 2013). According to Herrick, the law firm’s representation of plaintiffs in connection with the matters at issue ended in May of 2005 when it issued Opinion Letters regarding the tax status of the Easement donations, and the commencement of this action seven years later in May of 2012 is untimely. Plaintiffs first argue in opposition that the action is timely because the malpractice cause of action did not accrue until in or about 2011 at the earliest, when the IRS determined to disallow the tax deductions plaintiffs had claimed on their 2004 returns and plaintiffs discovered Herrick’s alleged malpractice for the first time. As recently as this month, in Hahn v The Dewey & LeBoeuf Liquidation Trust, 2016 WL 6078932, a case directly on point, the Appellate Division, First Department, rejected such a “discovery” argument, stating that: “Although plaintiffs claim not to have discovered that this advice was incorrect until years later, ‘[w]hat is important is when the malpractice was committed, not when the client discovered it’.” Hahn, citing McCoy v Feinman, 99 NY2d 295, 301 (2002), quoting Ackerman v Price Waterhouse, 84 NY NY2d 535, 541 (1994). The Appellate Division affirmed the trial court’s dismissal of the legal malpractice claim in connection with the defendant law firm’s erroneous tax advice rendered more than three years earlier, even though plaintiffs had not discovered the error until the IRS raised it two years before the action was commenced.

Plaintiffs latch on to certain language by the Court of Appeals in McCoy and Ackerman, supra, also quoted in Hahn, that a legal malpractice claim accrues “when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court.” They argue that since they could not prove Herrick’s error until the IRS disallowed the Easement tax deduction in or about 2011, they could not prove injury and obtain relief in court. Such a reading is inconsistent with the facts and holding in Hahn discussed above. It is also contrary to other clarifying language in McCoy, where the Court of Appeals expressly found that: “Because the [defendant lawyer] was negligent in failing to assert plaintiff’s claim to preretirement death benefits in the settlement stipulation or judgment, we conclude that plaintiff suffered actionable injury on the day of the stipulation … , or at the latest, on the day the judgment incorporating the stipulation was filed in the county clerk’s office” even though plaintiff did not discover the negligence until she sought to access the death benefits years later. 99 NY2d at 301 (emphasis added). Similarly, the Court of Appeals in Ackerman found that the cause of action for accountant malpractice accrued upon the accountant’s issuance of an erroneous tax return and not years later when the IRS assessed the deficiency. 84 NY2d at 541-42. In so holding, the court explained that “the claim accrues upon the client’s receipt of the accountant’s work product since this is the point that a client reasonably relies on the accountant’s skill and advice and, as a consequence of such reliance, can become liable for tax deficiencies …. This is the time when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court …. ” Id. at 541 (citations omitted); see also, Landow v Snow Becker Krauss, P. C., 111 AD3d 795 (2d Dep’t 2013) (cause of action for legal malpractice accrued when attorney issued erroneous tax opinion letter and not when the error was raised by the IRS and discovered by client years later). As defendants have demonstrated, prima facie, that plaintiffs’ claims are timebarred based on the 2005 accrual date, the burden shifts to plaintiffs to raise a question of fact as to whether the statute of limitations was tolled. Landow, supra, 111 AD3d at 796-97. In a further attempt to shield their claims from Herrick’s statute of limitations defense, plaintiffs seek to rely on the toll available under the “continuous representation” doctrine. Specifically, plaintiffs assert that the Herrick firm continuously represented them in connection with the original engagement inasmuch as Herrick was asked for assistance with regard to the IRS audit and rendered statements for services rendered through August of 2009. Plaintiffs argue that because of the continuous representation by Herrick, the statute of limitations did not expire until three years later, after this action was commenced in May 2012. The Court of Appeals explained the continuous representation doctrine in detail in Shumsky v Eisenstein, 96 NY2d 164, 167-68 (2001) (internal quotation marks and citations omitted): The continuous representation doctrine, like the continuous treatment rule, its counterpart with respect to medical malpractice claims, recognizes that a person seeking professional assistance has a right to repose .confidence in 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. ”

“As summarized more recently by the First Department, a finding of continuous representation must be based on “clear indicia of an ongoing, continuous, developing and dependent relationship between the client and the attorney” or of “a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.” Hadda v Lissner & Lissner LLP, 99 AD3d 476, 477 (1st Dep’t 2012), quoting Matter of Merker, 18 AD3d 332, 332-33 (1st Dep’t 2005). ”

“While the dismissal of all the claims asserted by four of the five plaintiffs may .I appear harsh at the pleading stage in light of the significant value of the claims, plaintiffs are all sophisticated, long-term real estate owners and investors in the City of New York. Had plafntiffs acted in 2007 or 2008 to enter into a tolling agreement or commenced suit against Herrick when the IRS first notified plaintiffs of questions relating to the tax deductions, plaintiffs’ suit would have been timely. But plaintiffs did not act then, and this Court cannot correct that omission. “While courts have discretion to waive other time limits for good cause (see CPLR 2004), the Legislature has specifically enjoined that ‘[n]o court shall extend the time limited by law for the commencement of an action’ … ” McCoy, supra, 99 NY2d at 300 (citations omitted). And the law discussed above does not permit a toll of the statute of limitations; even assuming an ongoing relationship between Herrick and the four plaintiffs, the allegations and evidence fail to demonstrate the required “mutual understanding of the need for further representation on the specific subject matter underlying the malpractice ‘ claim” so as to entitle plaintiffs to the continuing representation toll. Id. at 306. “

Professional negligence is different from ordinary negligence.  How, one asks?  When the statute of limitations commences is one difference.  We see in  All Craft Fabricators, Inc. v Syska Hennessy Group, Inc. 2016 NY Slip Op 07257   Decided on November 3, 2016  Appellate Division, First Department that the statute normally starts later for professional negligence.

“Plaintiffs allege that they were harmed by defendant’s failure to advise them that there was asbestos in wood panels and doors delivered to their facility for refurbishment. Defendant moved to dismiss based on, among other things, the three-year statute of limitations applicable to plaintiffs’ claim, whether grounded in professional negligence (malpractice) or ordinary negligence (CPLR 214[4], [6]).

Because the parties have no contractual relationship with each other, the claim must be viewed in terms of simple negligence (Board of Mgrs. of Yardarm Beach Condominium v Vector Yardarm Corp., 109 AD2d 684, 685 [1st Dept 1985], appeal dismissed 65 NY2d 998 [1985]), with accrual occurring within three years of the date of injury (Town of Oyster Bay v Lizza Indus., Inc., 22 NY3d 1024, 1031 [2013]), rather than a claim for professional negligence, which generally accrues upon the completion of the work at issue (Germantown Cent. School Dist. v Clark, Clark, Millis & Gilson, 100 NY2d 202 [2003]). We reject defendant’s position that the date of injury was in January 2012 when the asbestos-laden doors and panels were delivered to the facility. Until plaintiffs’ personnel actually unsealed the wooden crates that the doors and panels were encased in and cut into the material, any contamination of plaintiffs’ facility had not yet occurred.

Nevertheless, plaintiffs’ contention that the date of injury was, at the earliest, May 29, 2012, exactly three years before they commenced the action, when they first noticed what they believed to be asbestos, is unavailing. “[T]he damage that [plaintiffs] are seeking to undo’ is not the fact that they discovered asbestos, but the fact of its incorporation in their buildings” (MRI Broadway Rental v United States Min. Prods. Co., 92 NY2d 421, 428 [1998]). The record makes clear that, while plaintiffs may have first noticed asbestos on May 29, they exposed the facility to it earlier that month.”