The statute of limitations is three years in legal malpractice.  It may be extended by the principal of continuous representation.  Mere representation is not enough.  There has to be a continuing relationship of trust and confidence and the work within the three year period must be on the same issue as is now being sued upon.  It cannot simply be general representation or work on another issue.

In R. Brooks Assoc., Inc. v Harter Secrest & Emery LLP ; 2012 NY Slip Op 00602 ; Decided on January 31, 2012 ; Appellate Division, Fourth Department  plaintiff loses because it cannot be demonstrated that the latest work was on the same issue being sued upon.  "Pursuant to CPLR 214 (6), an action to recover damages for legal malpractice must be commenced within three years of accrual. 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’ " (Guerra Press, Inc. v Campbell & Parlato, LLP, 17 AD3d 1031, 1032, quoting Ackerman v Price Waterhouse, 84 NY2d 535, 541). Here, defendant met its initial burden on the motion by submitting evidence establishing that the alleged malpractice occurred, at the latest, on August 3, 1999 and thus that the action was time-barred when commenced on May 4, 2004.

In opposition to the motion, plaintiff failed to raise a triable issue of fact whether the continuous representation doctrine applied to toll the statute of limitations (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Pursuant to that doctrine, the running of the limitations period is tolled during the time that an attorney continues to represent a client on the matter that is the subject of the malpractice action because the client must be able "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" (Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 9 [internal quotation marks omitted]). The doctrine tolls the limitations period "where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim" (McCoy v Feinman, 99 NY2d 295, 306), and " where the continuing representation pertains specifically to [*2][that] matter’ " (International Electron Devices [USA] LLC v Menter, Rudin & Trivelpiece, P.C., 71 AD3d 1512, 1513, quoting Shumsky v Eisenstein, 96 NY2d 164, 168; see Chicago Tit. Ins. Co. v Mazula, 47 AD3d 999, 1000).

Here, although plaintiff submitted bills from defendant for legal work performed within three years of the commencement of the action, it failed to establish that the bills were for work on the matter that was the subject of the alleged malpractice. Indeed, the evidence submitted by defendant established that the last work that it performed for plaintiff with respect to the subject of the alleged malpractice occurred in January or February 2001, and plaintiff failed to submit evidence raising a triable issue of fact whether the work performed after that time was related to the alleged malpractice. We therefore conclude that the evidence submitted by plaintiff established no "more than simply an extended general relationship between the [parties]" (Zaref v Berk & Michaels, 192 AD2d 346, 348). Such evidence is insufficient to raise a triable issue of fact whether "(1) plaintiff[] and defendant . . . were acutely aware of the need for further representation[ concerning the subject of the alleged malpractice,] i.e., they had a mutual understanding to that effect[], and (2) plaintiff[ was] under the impression that defendant . . . was actively addressing [its] legal needs" with respect to the subject of the alleged malpractice (Williamson, 9 NY3d at 10). Consequently, the doctrine of continuous representation does not apply, and Supreme Court erred in denying the motion (see Gotay v Brietbart, 12 NY3d 894; see generally Young v New York City Health & Hosps. Corp., 91 NY2d 291, 295-297). "

Assume the following:  Plaintiff has a medical malpractice case and retains Defendant law firm to handle it.  Defendant law firm works on the case for a while, and as the statute of limitations nears, tells the client that it’s not going to go forward, and that the client should seek other counsel.  Client, who does not have other attorneys ready to go, is unable to bring the action within the statute of limitations.  Is the first attorney liable in legal malpractice, or is the client (in effect) responsible because no new attorney was found. 

in Alden v Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz ("the People’s Lawyer")  ; 2012 NY Slip Op 00580 ; Decided on January 31, 2012 ; Appellate Division, Fourth Department  we see one answer.  
 "Supreme Court properly granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) in this legal malpractice action. Accepting as true the facts set forth in the complaint and according plaintiff the benefit of all favorable inferences arising therefrom, as we must in the context of the instant motion (see generally Leon v Martinez, 84 NY2d 83, 87-88), we conclude that the complaint fails to plead a cognizable theory for legal malpractice because it does not permit the inference that any alleged negligence by defendant was a proximate cause of plaintiff’s damages (see Pyne v Block & Assoc., 305 AD2d 213). The proximate cause of any damages sustained by plaintiff was not the alleged legal malpractice of defendant but, rather, the proximate cause of plaintiff’s damages was either "the intervening and superseding failure" of plaintiff to retain successor counsel in a timely manner or the failure of successor counsel to commence a timely medical malpractice action on plaintiff’s behalf (Pyne, 305 AD2d 213). Indeed, we note that the record establishes that defendant afforded plaintiff and her successor counsel "sufficient time and opportunity to adequately protect plaintiff’s rights" (Somma v Dansker & Aspromonte Assoc., 44 AD3d 376, 377; see Maksimiak v Schwartzapfel Novick Truhowsky Marcus, P.C., 82 AD3d 652; Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641; cf. Wilk v Lewis & Lewis, P.C., 75 AD3d 1063, 1066-1067)."

Here is a short decision with deep reaching consequences. In Kurman v Schnapp ;2010 NY Slip Op 03786 ;Decided on May 4, 2010 ;Appellate Division, First Department we see the deceitful act of an attorney, and the Appellate Division substituting its finding for that of Supreme Court. We have commented on the natural inclination of attorneys, applying rules of attorney behavior to other attorneys, to minimize and overlook. How, one asks, could Supreme Court have come to such a different conclusion from the Appellate Division?
 

"Plaintiff stated a cause of action under Judiciary Law § 487 by alleging that defendant deceived or attempted to deceive the court with a fictitious letter addressed to him from the former licensing director of the City’s Taxi and Limousine Commission (TLC) that stated, inter alia, that plaintiff was under a lifetime ban on owning any licenses with the TLC (see Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]). Plaintiff further sufficiently alleged specific damages that could not have occurred in the absence of defendant’s conduct (see id. at 15). The 2008 affidavit by the TLC’s former licensing director offered by defendant in support of his motion fails to demonstrate conclusively that plaintiff has no cause of action (see Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008]).

Plaintiff’s breach of fiduciary duty cause of action is not duplicative of his legal malpractice cause of action, since it is premised on separate facts that support a different theory (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 58 AD3d 1, 9-10 [2008]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [2004]. As alleged, plaintiff’s breach of fiduciary duty claim arose in December 2006, when defendant commenced his litigation activities against plaintiff in the Westchester County Supreme Court action, and continued through defendant’s 2007 disqualification from representing the Queens Medallion Leasing Inc. defendants, and thereafter. In contrast, plaintiff’s legal malpractice claim is based upon defendant’s alleged 2005 and 2006 "communications with the TLC that may have left the impression that [defendant] was still representing [plaintiff] at that time."
 

The matter of Steinberg v. Schnapp, 2010 NY SlipOp 02991 relates the story of three lawyers, all of whom labored over a decedent’s estate, and how the triumvirate fell apart. Steinberg and Schnapp were retained to handle the estate by the executor who in this case was the third attorney. Things fell apart rapidly, and, although unsaid, some mistakes were made. Attorney 1 sues attorney 2 over fees, but does not sue the estate. Why is this?

Judge Nardelli seems to have hit it on the head when he wrote "Inchoate in his complaint and the averments in support is a veiled concern that he might face a legal malpractice action for actions for which he was not responsible. Why a claim in quantum meruit against co-counsel would forestall such an action is left unsaid, but, in any event, the only issue before us with regard to the quantum meruit claim is whether Steinberg has raised any questions of fact as to Schnapp’s argument that he has failed to state a cause of action.

At issue is the propriety of the motion court’s dismissal of an attorney’s claims under the theories of quantum meruit, as well as tortious interference with advantageous economic relationships. Both plaintiff Robert Steinberg and defendant Stanley Schnapp are attorneys admitted to practice in New York. Non-party Leon Baer Borstein also is an attorney, and was the preliminary executor of the estate of Isi Fischzang.

In the claim for tortious interference Steinberg alleges that he was fired because the "underlying client" (Borstein) had become dissatisfied with the delays in the probate of the estate, but that Schnapp fired Steinberg to shift the blame for the delays to Steinberg. Notably, Steinberg acknowledges that the "underlying client" could have requested his discharge "whimsically or capriciously or for any reason or for no reason, but the discharge would remain without cause.’" His concern that there is an intimation that his termination was "for cause" apparently provides much of the impetus for this litigation.

"[W]e are required to adjudicate [parties’] rights according to the unambiguous terms of the contract and therefore must give the words and phrases employed their plain meaning (Laba v. Carey, 29 NY2d 302, 308 [1971]). The plain language of all the written documents presented in this record evidences that Steinberg’s client was the estate, and not Schnapp. Certainly, "[i]f a client exercises the right to discharge an attorney after some services are performed but prior to the completion of the services for which the fee was agreed upon, the discharged attorney is entitled to recover compensation from the client measured by the fair and reasonable value of the completed services" (Matter of Cooperman, 83 NY2d 465, 473 [1994] [emphasis added]). In this case Steinberg has sought to recover compensation for his services from a party who did not have any obligation to compensate him – his co-counsel – with whom he was clearly not in privity. There is not even a suggestion that the estate is an undisclosed principal, in which case liability might attach to Schnapp, under time-honored principles (see e.g. Ell Dee Clothing Co. v. Marsh, 247 NY 392, 397 [1928])."
 

Pre-judgment attachment is disfavored in litigation.  Generally one must show that "the subject property was in imminent danger of irreparable loss or waste ."  Beyond that showing, there are rules when the request for an attachment might be sought.  Here is an example.

Breslin Realty Dev. Corp. v Shaw ; 2012 NY Slip Op 00478 ; Decided on January 24, 2012 ; Appllate Division, Second Department . 
 

"In an action to recover damages for legal malpractice, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), entered November 20, 2009, as granted the motion of Ronald Pecunies for leave to intervene in this action as a party plaintiff to the extent of directing the plaintiffs’ counsel to hold in escrow the sum of $117,120, purportedly representing the share of the proceeds of the settlement of this action claimed by Ronald Pecunies, for 30 days.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion for leave to intervene is denied in its entirety.

We agree with the plaintiffs’ contention that the motion of Ronald Pecunies for leave to intervene in this action as a party plaintiff should have been denied in its entirety. By the time Pecunies filed the motion, the litigating parties had already entered into a stipulation of settlement and this action was discontinued. Further, Pecunies was aware of this action from its inception, yet chose not to participate. Under these circumstances, there was no pending action in which to intervene, and the motion should have been denied in its entirety by the Supreme Court (see CPLR 1012, 1013; Carnrike v Youngs, 70 AD3d 1146; Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737; 176 E. 123rd St. Corp. v Frangen, 67 Misc 2d 281).

In any event, the relief granted by the Supreme Court, in the nature of establishing a temporary receivership, was improper because the settlement proceeds at issue here were not the subject of any action, and there was no clear evidentiary showing that the subject property was in imminent danger of irreparable loss or waste (see CPLR 6401[a]; Vardaris Tech, Inc. v Paleros Inc., 49 AD3d 631, 632; Singh v Brunswick Hosp. Ctr., 2 AD3d 433; Matter of Armienti & Brooks, 309 AD2d 659, 661; Schachner v Sikowitz, 94 AD2d 709). [*2]"

We’ve often noted that stating the mistake made by an attorney is not the difficult part of legal malpractice analysis.  Judges, lay persons and attorneys all readily point to this mistake or that mistake. Stating a departure from good and accepted practice is the easy part of the triumvirate.  What is way more difficult is analysis of the "but for" and the "damage" aspects of a case.  Here, in Meimeteas v Carter Ledyard & Milburn LLP ;2012 NY Slip Op 30134(U) ;January 12, 2012
Supreme Court, New York County; Docket Number: 100857/11 ;Judge: Eileen A. Rakower we see that plaintiff fails to convince the judge that there is merit to the underlying claim, regardless of mistakes his attorney may have made.

"According to the complaint, plaintiff was employed as Vice President in the Global Commercial Real Estate Group at Lehman Brothers (“Lehman”) from September 1997 until November 2004, when he was “abruptly terminated” from his position. Plaintiff alleges that he was fired for
voicing his objections to engaging in “certain illegal and or unethical business practices”in which his Lehman colleagues participated. Plaintiff claims that he was told that if he “went quietly” he would be paid his full bonus for 2004, in the amount of $290,000. Plaintiff did not receive his bonus.

Thereafter, plaintiff engaged defendant Carter Legyard & Milburn LLP (“CLM”). Defendant Janet Lockhart handled plaintiffs case for the firm. Plaintiff claims that Lockhart assured him that “a quick and favorable settlement” could be had, and, if not, she would file either an arbitration proceeding pursuant to plaintiffs “Series 7 License,” a lawsuit for wrongful termination, or seek redress for plaintiff as a “whistle blower.”

In early 2006, Lockhart advised plaintiff to appear for a deposition in an unrelated case involving Lehman and one of its clients, Laureate, and to sign a “stand still” agreement until August 2006. Lockhart apparently told plaintiff that if he cooperated, it would result in a quicker and more favorable settlement of plaintiffs claims. Lehman agreed to pay for CLM’s preparation and  representation of plaintiff at the deposition, Plaintiff stopped receiving bills from CLM entirely.
Plaintiff signed the stand still agreement and appeared for the deposition in April 2006, but CLM did not appear on his behalf. Plaintiff, later in his complaint, alludes to other representation at the deposition. Thereafter, plaintiff made efforts to get a firm response on the status of his case and settlement, but repeated calls by plaintiff and his wife were not returned. Eventually, Lockhart and other CLM partners advised plaintiff that they had nothing to report, because nothing could be done while the unrelated lawsuit involving Lehman remained unresolved. In April 2007, Lockhart encouraged plaintiff to extend the stand still agreement, which plaintiff refused to do. However, CLM and Lehman allegedly extended the agreement without plaintiff’s knowledge or consent.
CLM took no action against Lehman, and in 2008, plaintiff learned from Lehman’s counsel that Lehman. had settled the unrelated matter in the fall of 2007. In March 2008, plaintiff started calling Lockhart with increasing frequency because he was becoming concerned about the financial condition of Lehman, but his calls were not returned. Plaintiff alleges that CLM still took no action in furtherance of his claims, but Lockhart assured him that “Lehman was not in serious
danger of bankruptcy or sale.”
 

In September 2008, Lehman filed for bankruptcy, and plaintiff called Lockhart that day to seek legal guidance as to how his interests could be protected. Lockhart  advised plaintiff that, despite the bankruptcy, the claims could still be advanced because they were evidenced by the stand still agreements and the ongoing discussions with Lehman since 2004. Plaintiff heard nothing else from CLM or Lockhart, and ultimately filed a proof of claim online without assistance from CLM
on the last date that he was permitted to do so.

The complaint, in a veiled attempt to show that defendants’ negligent representation was the proximate cause of his losses, suggests plaintiff possessed proof of unethical practices, and suggests he was wrongfully terminated by Lehman. Proof of unethical practices is vaguely referred to in his allegations that he testified truthfully at a deposition regarding these practices and disclosed them. Nevertheless, the precise information plaintiff possessed for purposes of his whistle blower claim is never delineated. (compare with; Hayes v. Bello, 23 Misc.3d 534[Sup. Crt.
Richmond Cnty. 20091, where the court found that plaintiff satisfied the causation element by alleging “sufficient detailed facts regarding the circumstances and activities surrounding her termination,” including the specific alleged illegal activity, whom she reported the illegal activity to, and that such report resulted in her retaliatory termination.)
Further, the employment relationship between plaintiff and Lehman is never explained. For example, whether such relationship was subject to any written agreement. Indeed, plaintiff mentions Lehman practices when revealing that his bonus was not payable once he had left employment, but does not reveal whether his  employment and compensation was subject to an employee handbook or other agreement. He simply denies the documented reason for his termination, which was stated to be non productive "

Were we able to predict the future, we would be betting on further proceedings after the decision in CRP/Extell Parcel I, L.P. v Cuomo; 2012 NY Slip Op 50073(U) ; Decided on January 19, 2012
Supreme Court, New York County; Singh, J.  Here are the facts as set forth by Justice Singh.
 

"Petitioner CRP/Extell Parcel I, L.P. ("CRP/Extell") challenges the determinations issued by respondent, the Attorney General of the State of New York, ordering petitioner to return $16 million dollars in down payments to the purchasers of forty condominium units in a new [*2]construction on the West Side of Manhattan.

Petitioner is the developer of The Rushmore, a newly constructed luxury condominium located at 80 Riverside Boulevard. The condominium development offering plan was made in 2006 and 2007. The co-respondents are individual condominium purchasers ("purchasers") who entered into agreements with petitioner to buy condos.  CRP/Extell submitted its proposed plan to the Attorney General’s Office on November 29, 2005. Thereafter, the Attorney General issued deficiency comments to the sponsor’s outside counsel which is also the escrow agent in this matter, the law firm of Stroock & Stroock & Lavan LLP (hereinafter "Stroock"). The ongoing review process began, sets of revisions were submitted by petitioner’s attorneys and the Attorney General reviewed and commented on such revisions.

On August 11, 2006, petitioner’s plan was accepted for filing by the Attorney General’s Office. CRP/Extell then began offering condominium units for sale.

Between 2006 and 2008, the forty individuals named as co-respondents in this proceeding entered into purchase agreements with petitioner. The purchase agreements incorporated by reference CRP/Extell’s offering plan. The offering plan identified the commencement date for the first year of operations in the building. The projected first closing date was September 1, 2008.

In accordance with the agreements, purchasers tendered down payments to CRP/Extell. [*3]The down payments were all placed in escrow subject to 13 NYCRR section 20.3(o) in accordance with the offering plan.

The aggregate amount of the down payments paid by the purchasers is $16 million dollars. The properties are valued collectively at over $110 million dollars.

Section 20.3(o)(12) of the regulations required CRP/Extell to offer purchasers a right to rescind if the first closing in the building was delayed twelve (12) months beyond the anticipated commencement of the first year of operations. CRP/Extell was required, therefore, to offer purchasers a right to rescind if the first closing did not occur by September 1, 2009.

The offering plan contains a provision stating as follows:

It is anticipated that the First Closing will occur by the commencement date for the First Year of Condominium Operation as set forth in Schedule B which is September 1, 2008. If the First Closing does not occur by September 1, 2008, as such date may be extended by duly filed amendment to the Plan, Sponsor will amend the Plan to update the budget and to offer Purchasers the right to rescind their Agreements within fifteen (15) days after the presentation of the amendment disclosing the updated budget, and any Purchaser electing rescission will have their Deposits and any interest earned thereon returned.

It is undisputed that the offering plan was drafted by CRP/Extell’s counsel. Petitioner contends that the attorney who drafted the offering plan erroneously typed an "8" (September 1, 2008) instead of a "9" (September 1, 2009) in the above provision.

There is a heavy presumption that a deliberately prepared and executed written instrument accurately reflects the true intention of the parties. To overcome this presumption and warrant a trial on a claim for reformation, the plaintiff must come forth with a high level of proof, free of contradiction or equivocation, that the instrument is not written as intended by both parties. The party seeking reformation bears the burden of proving by clear and convincing evidence that the instrument is not correct due to an error in the reduction of the agreement to writing, or that it was executed under mutual mistake or unilateral mistake coupled with fraud. This means that the plaintiff must show, in no uncertain terms, not only that mistake or fraud exists, but also exactly what the parties agreed upon, particularly if the negotiations were conducted by sophisticated, counseled people.
 

For the above reasons, the application to vacate the determination of the Attorney General’s Office is denied, and the Article 78 proceeding is dismissed, and it is further
 

ORDERED that petitioner CRP/Extell Parcel I, L.P., and Stroock & Stroock & Lavan LLP, the escrow agent, are directed to release and return the down payments, together with any accumulated interest, to the individual purchasers within 30 days of receipt of this decision and order; and it is further

ORDERED that the respondent individual purchasers are awarded their costs and expenses in defending this proceeding.

Plaintiff is involved in an assault and battery, and then spends the next umpteen years litigating the case, suing his attorney, relitigating the case, suing the police department, suing his attorney once again.  It all ends in his being enjoined from suing again without court approval.  Only in a pro-se world could this happen.

InBanushi v Epstein ;2012 NY Slip Op 30123(U); ; January 11, 2012; Sup Ct, NY County; Docket Number: 402693/10; Judge: Doris Ling-Cohan

"In May, 1998, Banushi hired Epstein to litigate a case that was already in progress.  The case was based on Banushi’s allegations that he had been assaulted and battered ("the assault case").  At least six (6) cases have been commenced by Banushi related to such alleged assault/battery, including his claims based upon the alleged lack of effective legal representation that he received in litigating the assault case and not including a disciplinary complaint filed against defendants which was dismissed.

Epstein proceeded to represent Banushi in the assault case.  the relationship between client and attorney did not fare well, resulting in Epstein filing a motion to withdraw as counsel, which was granted, prior to the case going to trial.

Epstein alleges that the assault case was ready for trial when he withdrew and that he believes Banushi did not retain new counsel and tried the assault case pro se. After trial, a verdict was rendered in favor of the defendants. Banushi appealed the verdict, which was affirmed and he was denied leave to appeal that decision  Court of Appeals. In 2001, Banushi brought an action for legal malpractice against Epstein in Civil Court Kings County (“the 2001 case”), which resulted in a trial and a judgment in Epstein’s favor.  In 2003, Banushi lodged a complaint against Epstein with the Disciplinary Committee, First Department which, according to Epstein, was summarily dismissed. In 2006, in the United States District Court, Eastern District of New York, Banushi! the City of New York and a New York City police officer alleging that the New York City  Police Department
(NYPD) failed to provide him with a proper report of the assault, thus ability to litigate the assault case. The court determined that the federal and state were time barred and granted summary judgment dismissing the claims.

Thus, defendants’ motion to dismiss is granted and the cross motion to further amend the complaint is denied. The balance of Epstein’s motion is denied, except that Banushi is enjoined from commencing any further lawsuits or making any motions, unless he is represented by counsel if unrepresented, without prior court approval and a copy of this decision shall be provide
such application (see Sibersky v Winters, 42 AD3d 402,404 [lst’ Dept 2007).