We sometimes ponder whether attorneys are held to a lesser standard in Legal Malpractice, or to put it a different way, are plaintiffs in legal malpractice forced to overcome sympathy for attorneys?  It cannot be argued that there is a fourth element in legal malpractice – the "but for" rule – that exists no where else.  But, let’s look at a recent case.

In Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank ; 2011 NY Slip Op 06829
Decided on September 27, 2011 ; Appellate Division, Second Department  Supreme Court dismissed the Temple’s complaint.  The Appellate Division reversed most of the dismissals.  Did Supreme Court just have it wrong, or does this reflect an institutional bias for attorneys?  You decide.
 

"The Supreme Court held that the attorneys were entitled to dismissal of the eighth cause of action to recover damages for legal malpractice insofar as asserted against them on the grounds that the applicable statutes of limitations had run, the attorneys had presented documentary evidence that conclusively disposed of the temple’s claims, and the temple failed to state a cause of action. We disagree. Based upon the allegations in the complaint and the documentary evidence presented, it cannot be determined at this juncture whether the continuous representation doctrine tolls the three-year statute of limitations for attorney malpractice under the circumstances (see Kanter v Pieri, 11 AD3d 912, 913-914). Moreover, the temple properly alleged all of the elements necessary to recover damages for legal malpractice. Accordingly, the Supreme Court erred in holding that the eighth cause of action to recover damages for legal malpractice should be dismissed insofar as asserted against the attorneys. "

"The Supreme Court further erred in holding that the seventh cause of action to recover damages for fraud should be dismissed insofar as asserted against the attorneys. Contrary to the attorneys’ contention, that cause of action was pleaded with sufficient specificity (see CPLR [*3]3016[b]; Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492; PDK Labs v Krape, 277 AD2d 211), and the attorneys’ documentary evidence failed to "resolve[] all factual issues as a matter of law, and conclusively dispose[] of the plaintiff’s claim" (Brunot v Eisenberger & Co., 266 AD2d 421, 421; see CPLR 3211[a][1]). However, in its current form, the sixth cause of action alleging a violation of Judiciary Law § 487 lacks the required specificity (see Mars v Grant, 36 AD3d 561; Briarpatch Ltd., L.P. v Frankfurt Garbus Klein & Selz, P.C., 13 AD3d 296, 297-298), and, under the circumstances of this case, we modify the order dated August 2, 2010, to grant that branch of the motion which was pursuant to CPLR 3211(a) to dismiss the sixth cause of action insofar as asserted against the attorneys with leave to the temple to replead the allegations in an amended complaint. "

 

 

Much of what we report is legal malpractice, and that almost always deals with money.  What did plaintiff lose?  How much was plaintiff required to pay?  What are the attorney fees?  Why is plaintiff liable to pay an attorney some money?  All important questions, and often they tell of a subtext of injury, divorce, disenfranchisement, and sadness.  Rarely, however, does legal malpractice result in death.

Yet, it can happen.  Pro bono capital crimes representation is a lovely act, and many innocent prisoners have benefited from Project Innocence and other similar programs.  Many of the big NY firms do criminal pro bono work, and they extol it on their web sites.  Here, is the flip side.  Associate attorneys working for Sullivan & Cromwell take on a pro bono case, and then as the years go by, they move on to other firms.  What happens to the case?

Today’s Law,Com answers the question, in the US Supreme Court.  "Alabama death row inmate Cory Maples, who lost his chance to bring a critical appeal because of a mailroom snafu in a New York law firm, may be getting a second chance from the U.S. Supreme Court.

In fast-paced arguments on Tuesday that delved into the obligations of lawyers representing criminal defendants, all of the justices, with the exceptions of Justice Antonin Scalia and a silent Justice Clarence Thomas, appeared concerned about the predicament in which Maples finds himself and skeptical of the state’s arguments that they should do nothing about it.

Maples, sentenced to death for the 1995 murders of two men, was represented pro bono in his state post-conviction appeal by two associates at New York’s Sullivan & Cromwell. As required by Alabama rules at the time, the two lawyers associated themselves with a local attorney, John Butler, in order to be admitted to practice in the state. Although the rules required Butler to be jointly and severally responsible for the case, he claimed his only role was to secure the New York attorneys’ admission.

The three attorneys filed a state post-conviction petition for Maples in which they raised ineffective assistance of trial counsel claims. After 18 months, the trial judge denied the petition, and then Maples’ problems began.

The court clerk sent notices of the denial order to the two associates and Butler. The associates, however, had left the firm for other jobs and failed to inform Maples or the court that they no longer represented him. Neither they nor Marc De Leeuw, the partner who worked with the associates, filed a substitution of counsel form. The firm’s mailroom returned the denial notices to the court clerk marked "return to sender" and "left firm." Butler did nothing with his notice, assuming the associates were handling the case. Maples actually learned of the denial and the missed appeal deadline when the prosecutor sent him a letter alerting him that the time for filing a federal habeas petition was close to expiring. He contacted his stepmother, who then contacted Sullivan & Cromwell. De Leeuw and Butler scrambled to ask the trial court to reissue its denial order so they could file an out-of-time appeal, but their motion was denied as was a request to the state criminal appeals court.

"

When does continuous representation end?  Sometimes there is a specific event (a judgment, a verdict, a motion decision) and sometimes there is a specific event plus a specific period of time (the date of the injury + three years) and sometimes continuous representation ends when the parties believe it ends.  So it is in Hadda v Lissner & Lissner LLP ; 2011 NY Slip Op 32519(U)
September 19, 2011; Sup Ct, NY County; Docket Number: 109329/10; Judge: Emily Jane Goodman.

"The continuous legal representation doctrine recognizes that the statute of limitations for  ommencing a malpractice action may be tolled, if the continuing representation "pertains specifically to the matter in which the attorney committed the alleged malpractice." Shumsky, 96 NY2d at 168. In other words, the doctrine permits the tolling of the statute of limitations "until
the ongoing representation is completed." Id. at 167-168. The plaintiff bears the burden to prove that the doctrine applies. See Corless v Mazza, 295 AD2d 848 (3d Dept 2002). The doctrine
requires a clear indicia of an ongoing, continuous, developing and personal relationship between the attorney and client or a mutual understanding of the need for further representation on
the specific subject matter underlying the malpractice claim.  See Matter of Merker, 18 AD3d 332 (1st Dept: 2 0 0 5 ) ."

"Defendants have not demonstrated, by conclusive documentary evidence, when the legal  alpractice action accrued (i.e, defendants rely on April 2006 as the date, which was when the
firm participated in a conference call, but did not bill for the work)’ and have not demonstrated that the continuous representation doctrine does not apply. Although it is true that the relationship may have ended prior to the time that plaintiffs’ terminated the relationship by l e t t e r , no conclusive
proof has been submitted regarding when the relationship ended.  Defendants note that the doctrine applies until the client is on notice that the attorney is no longer addressing their needs,
which need not be in the form of a motion to withdraw, but only needs to be reasonably sufficient to advise the client that the attorney w i l l no longer pursue the matter. However, contrary to defendants’ argument, that ”[pllaintiffs were surely on notice that the Law Firm w a s no longer addressing their legal needs” (Reply Affirm at 4), the affidavits of the husband of Ceri Hadda,
(who is himself an attorney), and Ceri herself, paint a different picture.  because he ‘is not a plaintiff in this action and his surname is not ‘Hadda”‘ and, because he was not party to the retainer (Id.at 16). While it is true that the doctrine depends upon the relationship between the attorney and the client (see Grlffen v Anslow, 17 AD3d 889 (3d Dept 2005) (retainer agreement and other documents conclusively established that the legal malpractice action should be dismissed because they indicated that the attorney-client relationship was not between plaintiff and
defendant, but was between plaintiff‘s corporations and defendant), nothing has been cited to support defendants’ contention that the client cannot act through her attorney husband. Here, apparently the f i r m itself recognized the husband’s authority to act on behalf of plaintiffs."

Malachowski v Daly ; 2011 NY Slip Op 06720 ; Decided on September 30, 2011 ; Appellate Division, Fourth Department  is a divorce legal malpractice case from Utica, and it demonstrates two things.  Plaintiff must, early on, set the tone and state the claims in bills of particular and during early discovery, and once having determined the claims, they must be robust enough to pass muster with the Court and the AD.  Here, a late-made claim that wife’s credit card debt was understated, and that the attorney failed to discover the correct amount is undercut by the fact that the credit card debt was understated by $ 74.00  The same is more or less true for pension benefits and other claims.

"We further conclude that the court properly granted that part of the motion seeking dismissal of the amended complaint insofar as it alleges that defendant failed to move to vacate the stipulation entered in the underlying divorce action, inasmuch as plaintiff did not retain defendant for that purpose (see DiGiacomo v Levine, 76 AD3d 946, 949-950). We note that plaintiff contends for the first time on appeal that defendant promised to move for vacatur. Because plaintiff did not set forth that contention in the amended complaint or in the bill of particulars, or otherwise raise the issue in Supreme Court, that contention is not properly before us (see Ciesinski v Town of Aurora, 202 AD2d 984, 985).

Plaintiff’s remaining contention is that the court erred in granting that part of defendant’s motion with respect to his claim that defendant was negligent in failing to discover prior to settlement of the underlying divorce action that plaintiff’s ex-wife, upon retirement, would receive payments of $500 per month from her then employer, over and above her anticipated pension benefits. We reject that contention. As the court noted in its decision, and as plaintiff concedes on appeal, the exact nature of the payments to plaintiff’s ex-wife is unclear from the record. It cannot be determined whether the payments constitute marital property, as plaintiff suggests, or whether, as defendant posits, they constitute social security bridge payments, which do not constitute a form of deferred compensation and thus are not marital property (see Olivo v Olivo, 82 NY2d 202, 208). Plaintiff’s claim regarding the payments in question was not set forth in the amended complaint, nor was it referenced in the bill of particulars. Instead, it was raised for the first time by plaintiff in opposition to defendant’s motion. "
 

Decedent hires attorney to prepare a will, and to make changes to beneficiaries for her assets.  As one might predict, something goes wrong.  in Gurvitz v Wank; 2011 NY Slip Op 32511(U); September 19, 2011; Supreme Court, Nassau County; Docket Number: 10468/06; Judge: Ute W. Lally we see the results.  The litigation goes on for years, and only now, some 20 years later, are the actual claims honed to an amended complaint.

"In December 1989 , defendant Jerald Wank, an attorney and a certified public accountant, prepared the Last Will and Testament for non-party Marta Wisterich (the Will"). The Will was executed on January 3 , 1990 and named , both , the plaintiff Barbara Gurvitz, and the defendant, Jerald Wank, as co-executors of her Estate. The Will also named the plaintiff as the sole beneficiary. Apparently, at the time of the preparation and execution of the Will , Marta Wisterich asked Wank to change the beneficiary of her Teacher s Insurance and Annuity Association (TIM) Equity Fund to Barbara Gurvitz. Plaintiff claims that the defendant failed to file the requisite paperwork with the TIM reflecting the requested change. As a result, plaintiff filed the appropriate papers with TIM herself on April 22 1991.  Marta Wisterich died on May 28 , 1991.

Plaintiff claims that the defendant then negotiated an agreement to split the Estate of Marta Wisterich in half as between the decedent’s aunt and the plaintiff. She claims that during the negotiations therein , defendant apparently represented the interests of the plaintiff as well as the interests of the Estate. Furthermore , plaintiff claims that the defendant failed to pay her the half of the estate to which she was entitled , instead retaining said share and telling her that he would first pay the outstanding taxes on her behalf. Plaintiff claims that the defendant deposited said monies into a new (escrow) account created under her name, from which defendant withdrew the money to give to the decedent’s aunt. Plaintiff claims that the escrow account created an appearance of income that the plaintiff did not in fact receive. She also claims that not only did the defendant fail to
file or pay plaintiff’ s taxes , but he also refused to pay back the money he held in escrow and refused to represent her before the IRS and the New York State Department of Finance when plaintiff received a tax bill. Plaintiff claims that as the result of defendant’s mistakes, her liability to the IRS totaled more than $160 977. 84 and the amount paid to the Department of Finance totaled more than $23 361. 11. In addition plaintiff claims that as the executor, defendant failed to sell Wisterich’ s cooperative apartment in New York for two years after her death , resulting in  fines and penalties to the Estate and further diminishing the value of the residual Estate.

The statute of limitations begins to run when the cause of action accrues (CPLR 9203(aD, Le.
 "when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court"(Aetna Life Cas. Co. v Nelson 67 NY2d 169 , 175).  Plaintiff claims in her first cause of action (breach of fiduciary duty as attorney) that plaintiff was represented by the defendant from "March 1992 to now acting as her  attorney with respect to the estate of Marta Wisterich". As alleged in her proposed amended complaint, the claimed breach , as attorney, occurred when the defendant misappropriated funds with respect to plaintiff’ s taxes. According to the plaintiff’ s own allegations said breach occurred some time after May 1992 and before 2000 when defendant forwarded the funds held for the plaintiff in his escrow account to the plaintiff’  then attorney, Mr. Caro. Clearly, under these facts , and even assuming that the breach of fiduciary duty occurred at the very latest in 2000, the cause of action to recover damages for breach of fiduciary duty is time-barred insofar as asserted against Wank as attorney (CPLR 3211 (a)5.). Accordingly, plaintiffs proposed first cause of action for breach of fiduciary duty as attorney is dismissed. Plaintiff has failed to make the requisite evidentiary showing establishing merit to her proposed amended claim (Joyce v McKenna Assoc. , supra; Morgan v Prospect Park Assocs. Holdings, supra). ‘

Might we trust our attorneys?  Can a plaintiff be assured that the attorneys are not conspiring with defendants to "carve" up the settlement between them.  Our system is based upon trust and loyalty, and a belief in the incentive of success.  However…

It need not always be true.  as an example, the Second Circuit reversed the dismissal of a major case against Leeds Morelli & Brown, finding  "overriding and abiding conflicts of interest for LMB and thoroughly undermined its ability to "deal fairly, honestly, and with undivided loyalty to [appellants]"  "The overriding nature of the conflict is underscored by the fact that, when fourteen of the 587 clients failed to agree,Nextel’s final, but pre-consultancy, payment to LMB was reduced from $2 million to $1,720,000, or $20,000 per non-agreeing client. "  In Johnson v. Nextel Communications 1892-cv -09 we see:

"Once all the claims were processed, LMB would formally go to work for Nextel as a consultant for two years at $1 million per year. LMB also promised in the DRSA not to accept new clients with claims against Nextel, not to refer any such client to another lawyer or firm, and not to accept compensation for any prior referral.

It cannot be gainsaid that, viewed on its face alone, the DRSA created an enormous conflict of interest between LMB and its clients. Such a conflict is permissible only if waivable by a client through informed consent. See Int’l Bus. Machs, Corp. v. Levin, 579 F.2d 271, 282 (3d Cir. 1978); Filippi v. Elmont Union Free Sch. Dist. Bd. of Educ., 722 F. Supp. 2d 295, 310-11 (E.D.N.Y. 2010). However, there may be circumstances in which a conflict is not consentable. See GSI Commerce Solutions, Inc. v. BabyCenter, L.L.C., 618 F.3d 204, 212 n.2 (2d Cir. 2010); CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir. 2008); Cohen v. Strouch, No. 10 Civ. 7828, 2011 WL 1143067, at *2-3 (S.D.N.Y. Mar. 24, 2011). For two reasons, this is such a case."

"Therefore, LMB’s clear duty as counsel to the parties seeking relief from Nextel was to advise each client individually as to what was in his or her best interests taking into account all of the differing circumstances of each particular claim. See Ziegelheim v. Apollo, 128 N.J. 250, 260-61 (1992); Jones Lang Wootton USA v. LeBoeuf, Lamb, Greene & MacRae, 674 N.Y.S.2d 280, 284-85 (N.Y. App. Div., 1st Dep’t. 1998). The DRSA was flatly antagonistic to that duty.

On the face of the DRSA, its inevitable purpose was to create an irresistible incentive—millions of dollars in payments having no relation to services performed for, or recovery by, the claimants—for LMB to engage in an en masse solicitation of agreement to, and performance of, the DRSA’s terms from approximately 587 claimant clients. The effectiveness of the DRSA, and therefore the payments to LMB, depended on Nextel’s conclusion that a sufficient number of clients had agreed to it.3 Any number short of all 587, and Nextel would have no obligation to pay anything, as Amendment 2 demonstrated by reducing the final, pre-consultancy $2 million payment to LMB to $1,720,000, a reduction of $280,000, or $20,000 apiece for the fourteen clients LMB failed to deliver. By entering the DRSA, agreeing to be bound by its terms and accepting the financial incentives available therein, LMB violated its duty to advise and represent each client individually, giving due consideration to differing claims, differing strengths of those claims, and differing interests in one or more proper tribunals in which to assert those claims.4 See Elacqua, 860 N.Y.S.2d at 232-33; accord Matter of Educ. Law Ctr., Inc., 86 N.J. 124, 133 (1981).

Legal malpractice is ubiquitous and might be expected at any attorney-client interface.  What is not expected, nor routine is the big loss of escrow funds.  News cycles have more and more reported on "rogue" traders/professionals.  Here is a big one in the law world from the NY Law Journal:

Client Sues Crowell Over Missing Escrow
 

"Crowell & Moring was sued Friday for $5.5 million in missing real estate escrow money that a client says was improperly diverted by former firm associate Douglas R. Arntsen (See Complaint).

Attorney Bruce H. Lederman, representing Regal Real Estate and related entities, sued Crowell & Moring ten days after reporting Mr. Arntsen to the Manhattan District Attorney’s Office. According to published accounts, Mr. Arnsten was in custody in Hong Kong after fleeing to avoid arrest. The reports could not be confirmed.

"My client has a big problem—this is unbelievable," Mr. Lederman, of D’Agostino, Levine, Landesman & Lederman said in an interview. "I feel like I’ve been living a bad episode of Law & Order since last Tuesday."

Mr. Arntsen’s picture has been taken down from Crowell & Moring’s website. The lawsuit accuses the firm of negligence and breach of contract for failing to prevent the improper diversion of funds by Mr. Arntsen. The funds came from deposits for sales of real estate in lower Manhattan and a condemnation award for a property on Eighth Avenue in Manhattan.

The lawsuit states that Crowell & Moring partner William O’Connor came to the firm in 2007, bringing Mr. Arntsen and Regal’s business with him, from Buchanan Ingersoll & Rooney. It states that Mr. O’Connor was responsible for supervising the work of Mr. Arntsen, who was with the firm until Sept. 9. The suit said the firm failed "to maintain adequate checks and controls over escrow accounts" to prevent the diversion of money.

Mr. Lederman said that the suit, Regal Real Estate, LLC. v. Crowell & Morning, was filed by Mr. Lederman after the law firm failed to meet a 3 p.m. Friday deadline for returning the money. With interest and the costs of the investigation, Regal is seeking $6 million, plus an award of attorney’s fees.

Crowell & Moring declined to comment"
 

A recent case, reported on Lexis but not yet entered in the NYS Court Appellate Division web site discusses the interrelation of defamation and legal malpractice.  In DANY DAVID, Plaintiff, – against – MICHAIL Z. HACK, WILLIAM J. O’MAHONEY and QUADRINO & SCHWARTZ, Defendants. INDEX NO. 103705/11; 103705/11; SUPREME COURT OF NEW YORK, NEW YORK COUNTY; 2011 NY Slip Op 32443U; 2011 N.Y. Misc. LEXIS 4461, Justice Mills, we see a case in which plaintiff and law firm argued over fees, and came to a resolution.  In that resolution the law firm refunded $250 and required a release.  Plaintiff signed the release, but now claims that it covered only a fee dispute and not any underlying legal malpractice.  In addition, client has a defamation claim.
 

The release definitely covered "legal malpractice" but the court found underlying indicia that the refund and the agreement did not contemplate anything but a fee dispute.  "It is undisputed that the law firm ceased its representation of plaintiff by December 23, 2009. Thereafter, plaintiff contested the amount due and owing for the services [*3] provided by the law firm during its prior representation of plaintiff, and such dispute was resolved with a refund to plaintiff by the law firm in the amount of $250.00. In consideration of such refund, plaintiff executed a mutual release on March 31, 2010, in favor of the law firm. The subject release specifically "RELEASES, ACQUITS AND FOREVER DISCHARGES" the law firm and its attorneys:
from any and all claims, rights, demands, liabilities, controversies, or causes of action, known or unknown, asserted or unasserted, liquidated or unliquidated, fixed or contingent, or of any nature whatsoever including without limitation, claims in contract, tort, or legal malpractice, under statutory or common law, or in equity…from the beginning of the world to the date of execution of this Agreement.
Moreover, such release also states as follow:

5. Careful Review and Understanding of Agreement

The parties to this Agreement acknowledge, [**3] represent and warrant that:
a. They have fully read this Agreement, understand its contents, and agree to its terms and conditions; and

b. They have consulted with legal counsel prior to executing this Agreement and the consequences of this Agreement have been completely explained to them by their attorneys and those terms are fully understood and voluntarily accepted by them.

Accordingly, the law firm contends that the plaintiff’s action against it are barred by the subject release.

As a general rule, a valid release that is clear and unambiguous on its face constitutes a complete bar to an action on a claim which is the subject of the release absent fraudulent inducement, fraudulent concealment, misrepresentation, mutual mistake [*4] or duress (see Littman v Magee, 54 AD3d 14, 17, 860 N.Y.S.2d 24 [2008]).

While plaintiff acknowledges signing the subject release, he contends that he was unrepresented at the time he signed it, and was under the impression that the release was limited to his fee dispute, and not a malpractice action. Plaintiff cites Rule 1.8(h)(2) in support of his position, which provides as follows:
(h) A lawyer shall not:
(2) settle a claim or potential claim for such liability with an unrepresented [**4] client or former client unless that person is advised in writing of the desirability of seeking, and is given a reasonable opportunity to seek, the advice of independent legal counsel in connection therewith.

There is no evidence presented by the law firm that the plaintiff was given a reasonable opportunity to seek, the advice of independent legal counsel in connection with the signing of the release. Additionally, plaintiff in his opposition annexes correspondence sent from the law firm to him, suggesting that he come into their office to sign the release and pick up the check in the amount of $250.00 to complete the pending fee dispute."

A potential client comes to the legal malpractice practitioner and says that a good medical malpractice case was lost at trial because of errors by their attorney.  They tell you that their expert was precluded, and that the case was lost against all defendants.  What’s more, the defendants were permitted to ask hypothetical questions that were not proper.  What can you do for me?

In many situations, the facts recited are true, and yet may not be actionable.  As an example,in Banister v Marquis ; 2011 NY Slip Op 06544 ; Decided on September 20, 2011 ; Appellate Division, Second Department  we see the following:
 

"Contrary to the plaintiffs’ contention, the trial court providently exercised its discretion in precluding them from calling an expert radiologist to testify. The proffered explanation for failing to identify this witness until after the trial began was not based on good cause (see CPLR 3101[d][1][i]; Lucian v Schwartz, 55 AD3d 687, 688; Caccioppoli v City of New York, 50 AD3d 1079, 1080). [*2]"

"The trial court should have prohibited counsel for the defendant Belinda Marquis from questioning an expert witness for the plaintiffs about a hypothetical pertaining to the probability of the infant plaintiff having both a pectus carinatum and fibromastosis, as the hypothetical was not based on facts supported by the evidence, nor from facts fairly inferable from the evidence (see Gilleo v Horton Mem. Hosp., 196 AD2d 569, 570). However, the error was harmless (see CPLR 2002; Kropf v New York Hosp., 212 AD2d 761). The trial court’s comments about the hypothetical did not deprive the plaintiffs of a fair trial (see Figueroa v Maternity Infant Care Family Planning Project, Med. & Health Research Assn. of N.Y. City, 243 AD2d 424).

Will preclusion of the expert survive a "judgment call" defense?  Can plaintiff prove to a judge’s satisfaction that testimony from that expert would have made a difference?  Is it all speculative? 

Are the harmless errors a mistake of the attorney, or did he/she make a valiant effort to object, only to be overruled?  Obviously the AD felt that there was no "but for" aspect…they found it harmless.

Legal malpractice litigation seems different from all other professional malpractice areas.  There seem to be more defenses and hurdles in this lawyer written-lawyer judged-lawyer prosecution area.

 

 

InByron Chem. Co., Inc. v. Groman; 2009 NY Slip Op 03465 ; Decided on April 28, 2009 ; Appellate Division, Second Department plaintiff employer sued its attorneys for an employee benefit provision which was drafted by attorney firm 1, which was then taken over by attorney firm 2. At issue was whether the doctrine of continuous representation tolled the statute of limitations, and if it did, were the two law firms to be held in the case. The Second Department held that while the law firms continued to intermittently represent the employer, such was not sufficient to toll the statute of limitations.
 

"Contrary to the plaintiff’s contention, the statute of limitations was not tolled by the continuous representation doctrine (see Dignelli v Berman, 293 AD2d 565; cf. Shumsky v Eisenstein, 96 NY2d at 168; see also Maurice W. Pomfrey & Assoc., Ltd. v Hancock & Estabrook, LLP, 50 AD3d 1531; Zaref v Berk & Michaels, P.C., 192 AD2d 346). The defendants’ subsequent representation in matters unrelated to the specific matter that gave rise to the alleged malpractice was insufficient to toll the statute of limitations (see Dignelli v Berman, 293 AD2d at 565). Accepting the facts alleged in the plaintiff’s complaint as true, there was a nine-year lapse between the defendants’ representation as to the employment agreements. The continuous representation doctrine does not contemplate such intermittent representation (see Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 9; Shumsky v Eisenstein, 96 NY2d at 167-168; Loft Corp. v Porco, 283 AD2d 556). Accordingly, the Supreme Court correctly granted the defendants’ motions to dismiss the complaint insofar as asserted against them as time-barred. "