The decision in Scartozzi v Potruch   10 NY Slip Op 03102 ; decided on April 13, 2010 ; Appellate Division, Second Department is long on discussion of summary judgment standards and a little short on background, but it appears that defendants gave advice to plaintiff in her divorce proceeding to forego trying to avoid payments to the prior attorney, and failed to advice her that she could instead collect her own attorney fees.
 

At the end of the day, plaintiff has two causes of action for legal malpractice left, with the balance of the claims weeded out.

"The Supreme Court properly granted those branches of the defendants’ motion which were for summary judgment dismissing the fourth cause of action, as well as the fifth cause of action alleging that the defendants improperly entered into a stipulation with prior counsel on the plaintiff’s behalf. In opposition to the defendants’ prima facie showing with respect to those causes of action, the plaintiff failed to raise a triable issue of fact.

Furthermore, as the defendants correctly argue, so much of the first cause of action as alleged, and the second cause of action alleging, breach of contract were duplicative of the cause of action alleging legal malpractice, as there was no evidence that the defendants promised to obtain a particular result (see Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562). Accordingly, the Supreme Court properly dismissed the second cause of action, and the first cause of action insofar as it alleged breach of contract.

However, the Supreme Court erred in granting that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action insofar as it alleged legal malpractice. Contrary to the defendants’ contention, the Supreme Court erred in determining that collateral estoppel barred the plaintiff from challenging as legal malpractice the defendant’s advice that she waive her right to seek prior counsel fees in the matrimonial action because she sought, unsuccessfully, to set aside the stipulation waiving the fees. In order to invoke the doctrine of collateral estoppel, (1) the identical issue must have necessarily been decided in the prior action and be decisive of the present action, and (2) the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664; Franklin Dev. Co., Inc. v Atlantic Mut. Ins. Co., 60 AD3d 897, 899). Here, the issue of whether the stipulation could be set aside was not identical to the issue of whether the defendants were negligent in advising the plaintiff to waive the fees. Thus, the plaintiff is not precluded from asserting a cause of action alleging legal malpractice based on the defendants’ allegedly negligent advice (see Bishop v Maurer, 9 NY3d 910, 911).

To succeed on a motion for summary judgment dismissing the complaint in a legal malpractice action, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of his or her cause of action alleging legal malpractice (see Boglia v Greenberg, 63 AD3d 973, 974; Fasanella v Levy, 27 AD3d 616; Suydam v O’Neill, 276 AD2d 549, 550). Here, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law by presenting admissible evidence establishing that the plaintiff could not prove that, in advising her to waive her right to request an award of her prior counsels’ fees, they "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" (McCoy v Feinman, 99 NY2d 295, 301).

The defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the third cause of action insofar as it alleged that they were negligent in giving incorrect information to successor counsel concerning the date by which the plaintiff’s motion pursuant to CPLR 4404 had to be filed. In opposition, the plaintiff failed to raise a triable issue of fact. However, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law on the third cause of action insofar as it alleged that the defendants failed to present certain evidence at trial. "

Sometimes we ruminate on the fact that legal malpractice law is written by attorneys, utilized against attorneys, and rulled on by attorneys.  There is no way around the conundrum.  In Christ v Law Offs. of William F. Levine & Michael B. Grossman ; 2010 NY Slip Op 03056 ; Decided on April 13, 2010 ; Appellate Division, Second Department  we perceive a glimmer of how attorneys may get a leg up, or an easier time in legal malpratice litigation.  From the case:
 

"The plaintiffs retained attorney Harold Solomon to prosecute a property damage claim against the Village of Garden City arising from a sewer backup at their house. Solomon failed to timely commence a negligence action against the Village based on that claim. Thereafter, the plaintiffs hired the defendants in this action to represent them in a legal malpractice action against Solomon, which the defendants commenced. In an order dated April 18, 2002, the Supreme Court (Franco, J.), granted Solomon’s motion for summary judgment dismissing the complaint in that legal malpractice action. The Supreme Court found that the plaintiffs failed to raise any triable issues of fact as to the Village’s negligence, as there was no evidence showing that the sewer backup was a recurring condition or that the Village had notice of the defect which caused the sewer backup. The plaintiffs subsequently discovered documents which allegedly demonstrated a history of sewer [*2]backups in the vicinity of their home. They also discovered that both Solomon and the defendants had made Freedom of Information Law requests (see Public Officers Law article 6) for those documents, but had failed to follow up when the Village did not respond to those requests. The plaintiffs then commenced this action, alleging the defendants committed legal malpractice by failing to obtain the documents relating to recurring sewer backups in their neighborhood prior to the dismissal of their action against Solomon.

The plaintiffs retained attorney Harold Solomon to prosecute a property damage claim against the Village of Garden City arising from a sewer backup at their house. Solomon failed to timely commence a negligence action against the Village based on that claim. Thereafter, the plaintiffs hired the defendants in this action to represent them in a legal malpractice action against Solomon, which the defendants commenced. In an order dated April 18, 2002, the Supreme Court (Franco, J.), granted Solomon’s motion for summary judgment dismissing the complaint in that legal malpractice action. The Supreme Court found that the plaintiffs failed to raise any triable issues of fact as to the Village’s negligence, as there was no evidence showing that the sewer backup was a recurring condition or that the Village had notice of the defect which caused the sewer backup. The plaintiffs subsequently discovered documents which allegedly demonstrated a history of sewer [*2]backups in the vicinity of their home. They also discovered that both Solomon and the defendants had made Freedom of Information Law requests (see Public Officers Law article 6) for those documents, but had failed to follow up when the Village did not respond to those requests. The plaintiffs then commenced this action, alleging the defendants committed legal malpractice by failing to obtain the documents relating to recurring sewer backups in their neighborhood prior to the dismissal of their action against Solomon.

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict by any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744; Nicastro v Park, 113 AD2d 129, 134). Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather, requires a discretionary balancing of many factors (see Cohen v Hallmark Cards, 45 NY2d 493, 499). It is for the trier of fact to make determinations as to the credibility of the witnesses, and great deference is accorded to the factfinders, who had the opportunity to see and hear the witnesses (see Bertelle v New York City Tr. Auth., 19 AD3d 343). Under the circumstances, the jury’s determination that the Village was negligent in maintaining its sewer system was supported by a fair interpretation of the evidence. "

Today, we continue the story of the legal malpractice law suit against the LaRossa law firm. In Landau, P.C. v LaRossa, Mitchell & Ross ;2010 NY Slip Op 50620(U) ;Decided on April 7, 2010 ;Supreme Court, New York County ;Schlesinger, J.

Two interesting issues are discussed.  The first is whether an expert affidavit is needed in all legal malpractice summary judgment cases, and the second is whether a sophisticated client can be held to have negated the malpractice by his participation in the underlying litigation.  Here the answer is twice, no.

"Second, the lack of an expert affirmation in the moving papers is not fatal. The argument put forth by the plaintiff that his former attorneys failed to exercise ordinary reasonable skill and knowledge commonly possessed by members of the legal profession practicing this kind of law, is not a particularly esoteric or technical one. While an expert affirmation can serve a useful purpose in channeling the Court’s focus as to the relevant issues, an experienced Court can usually detect whether or not there has been competent presentation of arguments to defeat a summary judgment motion. Also, Kenneth Mauro’s affirmation, served not only to oppose the motion by the plaintiff but to support the defendants’ cross-motion as well. In the latter case, the plaintiff appropriately responded with an expert affirmation of its own, one by Brian Shoot, an expert also in civil appellate advocacy.

But most important, this controversy will not now be decided by this Court on technical arguments. While such serve their purpose, and this Court is not in any way criticizing the multiple decisions made during the long pendency of this case by itself and others, again the overriding principle gleamed by this Court from the Court of Appeals is that Eisen, P.C. has yet to have its day in court on the merits of its legal malpractice claim.The second argument proferred by the defense is an exhaustive discussion of the Aboud and Rehberger actions concluding that, despite the arguments made by it in its reargument motion that, in fact there were no viable claims apart from the fraud and no viable case to be made for constructive notice of the alleged negligent conditions in either action. In other words, the same law firm is now agreeing with the City’s position in the first instance, one they forcefully repudiated in their reargument motion. [*5]

This brings the Court to another argument put forth by the defense, that the original papers opposing the City’s motion were discussed with Mr. Eisen who approved of them before they were submitted. This is presented in affirmations from a member of the firm, John W. Mitchell and from an associate, Susan LaRossa. They claim that it was Mr. Eisen who essentially directed the opposition.

Mr. Eisen in his Reply adamantly denies these assertions. Frankly, I believe these assertions not only diminish the overall arguments proferred by the defense, but are also irrelevant. At the time of the summary judgment motion, Mr. Eisen was not only not co-counsel to the firm he retained, but he was a disbarred lawyer as well. Therefore, to suggest that he not only aided the defense decisions but directed them is not only inappropriate (if it occurred) but more important, does not relieve the law firm from proffering the best arguments it could come up with to defeat the motion. Arguably one of those was that the central premise of the City’s argument was wrong. "

Morris Eisen was a huge figure in the personal injury law sector.  As the Sun King of PI attorneys, Eisen could truthfully say "Le etat ce moi!" His firm had a full floor at the Woolworth Building, and early every morning, breakfast was served there.  Anything from 10-30 trial attorneys assembled and were given new trial assignments.  We first met him, as an opponent, sitting on a Judge’s robing room desk, using her telephone, while she sat in the visitor’s chair, and told us to go get money to settle "Mr. Eisen’s" case

Of course, it changed as do all things.  The entire structure came crashing down, and Eisen ended up doing time in Federal prison.  But that’s not our story today.  Today, we see his legal malpractice law suit against the LaRossa law firm.  In Landau, P.C. v LaRossa, Mitchell & Ross ;2010 NY Slip Op 50620(U) ;Decided on April 7, 2010 ;Supreme Court, New York County ;Schlesinger, J.
 

From the decision: "In June of 2008, the highest court of this State decided that a legal malpractice action instituted by Landau, P.C., as successor to Morris J. Eisen, P.C., should, for the first time, go forward on its merits.

It was the City’s position that in two of the three cases named in their action, (the third was a Bronx case wherein no settlement occurred) Aboud and Rehberger, both of which settled, the former for $700,000, the latter for $15,000 (an additional $45,000 was paid by a private defendant), they were entitled to a return of this money (in fact tripled, pursuant to § 487 of the Judiciary Law) because their sole reason for settling was the [*2]introduction at trial by defendants of perjured testimony.[FN2]

The plaintiffs claim that the law firm committed malpractice in its failure to put into issue the factual under-pinnings of the City’s claim, in the City’s motion for summary judgment before Justice Jane Solomon. As stated earlier, the City claimed that its sole reason for settling these two matters was the perjured testimony presented at their respective trials. Since this testimony had been proven false at the Federal trial, the City argued that the defendant, Eisen, P.C. was collaterally estopped from challenging this falsity.

The sole opposition interposed by LaRossa, Mitchell & Ross was that collateral estoppel did not apply under these circumstances. However, the law firm never challenged the central premise of the motion, that the City’s sole reason for settling was the perjured testimony. That is, they never challenged that premise, so plaintiff argues here, until it was too late.

Justice Solomon ruled in favor of the City in a Decision and Order dated February 24, 1995. In the course of that decision she made the following correct statements:

…none of these defendants challenges any of the City’s contentions as to the underlying facts, including that, but for the fabricated testimony, and evidence, there would have been no viable claim in any of the three lawsuits (pp 14-15)

and

The City argues that but for the criminal acts of defendants, it would not have paid any money in connection with these cases because there would have been no evidence of prior notice which was required to establish a prima facie case against the City… This contention is unrefuted (p. 27). [*3]

But the plaintiff very definitely in his complaint and papers accompanying this motion, refutes that. Plaintiff takes great pains to show that conclusion was not true, and in fact, that there was clear evidence to rebut said conclusion. Plaintiff asserts their was sufficient evidence without the use of perjured testimony to merit a jury trial, or alternatively to have convinced the City to settle the actions, albeit perhaps for lesser figures.

Further plaintiff argues, and it is a good argument, that by the defendants’ firm’s very own words and actions, taken soon after Justice Solomon’s decision, it is clear the firm felt similarly.

What was that action? In May of 1995, the defendants moved for reargument/renewal of Justice Solomon’s decision. That motion was supported with a nine-page affirmation by an associate of the law firm, Susan G. LaRossa. Eight of these pages addressed the defendant’s position in detail. Ms. LaRossa argued that in fact the defendants were contesting the City’s claim that but for the fabricated evidence and perjurious testimony, the cases had no value. The affirmant tried to explain why these new facts had not been argued earlier, that there had not been a conviction of mail fraud, merely bribery, which went to their argument why collateral estoppel was not applicable, and that true discovery had not yet occurred. However, the thrust of the affirmation, citing the deposition testimony of Daniel Loveglia from the City Department of Highways, read at the trial regarding a daily log for the Queensboro Bridge, as well as repair records, supported the plaintiff Aboud’s position that there were potholes on the bridge and that only three days before the accident, repairs had begun to address these. The LaRossa deposition also referred to attached memoranda from the City evaluating the case as an extremely serious one and taking note of these repair records. "

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])."

Legal Malpractice and immigration cases are a rare fit.  Practitioners in legal malpractice get lots of calls about immigration malpractice, but the elements and the parties rarely line up.  Often if there is a good liability case, the client is no longer in the US.  If the client is available, there is little evidence of actually out-of pocket loss.  If the client is available, and there is proof of loss, then liability is a mixed issue.  Here, in Jansz v Meyers, 2010 NYSlipOp 30781, we see all three line up.

Plaintiff is an Australian citizen, and an attorney.  She was here legally on a H1-B visa.  She wanted to switch jobs, and hired the defendant attorney to handle the transition and visa renewal. He failed to file the visa application, and she lost her visa.  Able to remain in the US, but unable to leave and return, she made applications for hardship exemptions.  Here the attorney wrote that the client placed her trust in him, and he "failed her miserably" and that none of this was her fault.  The hardship request failed. 

In the ensuing legal malpractice law suit, the attorney, of course backtracked, and said that he wrote the material for her hardship application merely out of the goodness of his heart, and that it was indeed her fault.  Justice Solomon found for plaintiff on summary judgment.

We continue from yesterday in an examination of the statute of limitations in legal malpractice.  It’s three years, pursuant to CPLR 214(6). It is a "bright line" rule,  but it can have exceptions. Beyond the exceptions there is always a question as to when the statute begins to run. For example, there is a line of cases which hold that the statute does not begin to run until all elements of a case are in place. 

However, A recent US District Court case, in Southern District of New York, authored by Judge Sullivan has an excellent discussion of the traditional rule, the origins of the rule, of continuous representation and its relation to the continuous treatment concept of medical malpractice, and how it impacts transactional work, which has negative results years later. We’ll discuss this case today and tomorrow.

MIG, INC., v. PAUL, WEISS, RIFKIND, WHARTON & GARRISON, L.L.P., No 09 Civ. 5593 (RJS)UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2010 U.S. Dist. LEXIS 29548; March 29, 2010. While the facts of the case are somewhat complicated and deal with corporate documents and share holding issues, the legal malpractice issue is simpler. It is alleged that Paul Weiss made mistakes in the drafting of corporate documents in 1997 that had real world consequences in 2009.
 

From the opinion: "The alleged drafting malpractice occurred in September 1997, the date when the COD was filed. (See FAC P 2.) Clearly, the cause of action accrued at the same time. Absent the continuing representation doctrine, then, the claim would have expired in September of 2000. Accordingly, the Court must determine whether there was "a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim." McCoy, 99 N.Y.2d at 306. Of course, a plaintiff cannot simply make conclusory allegations that such an understanding existed, but must plead facts that support such an understanding. See W. Vill. Assocs., 854 N.Y.S.2d at 341 ("[F]acts are required to demonstrate [*20] continued representation in the specific matter directly under dispute."); cf. Iqbal, 129 S. Ct. at 1949. Therefore, the Court must evaluate the specific allegations in the Complaint that support Plaintiff’s conclusion.

Plaintiff offers two theories of how the continuing representation doctrine tolls the statute of limitations until 2007. First, Plaintiff argues that it has alleged specific representations related to the COD in each year from 1997 through 2007. (Pl.’s Opp. 11-18.) In the alternative, Plaintiff argues that it need not describe specific instances of continuing representation each year because the parties’ "mutual understanding" suffices to toll the statute of limitations. Neither of these arguments is persuasive.

a. Continuing Representations

Plaintiff first argues that specific work done by PW for MIG each year from 1997 through 2007, mostly in the form of SEC filings, is sufficient to satisfy the continuing representation doctrine. Thus, Plaintiff alleges that after the COD was filed in 1997, "PW consistently monitored the COD . . . [and] represented MIG in connection with each and every development concerning the COD through March, 2008." (FAC P 19.)

To support this claim, [*21] MIG alleges that "PW advised, reviewed, commented, edited and wrote MIG’s 10Ks, 10KAs, 10Qs, 10QAs and other SEC filings that concerned both the Preferred Stock and the COD." (Id. P 20.) For example, in 1998, PW prepared MIG’s 10K for 1997, which "recites that the sum of 199.4 million dollars was raised by the preferred stock public offering." (Id. P 21.) In addition, the 1997 10K provides, inter alia, a summary of the Company’s outstanding equity, including the amount of preferred shares and their principal rights. (Glanc Decl. Ex. 15 (Form 10K filed by Metromedia International Group, Inc. on March 31, 1998) at F-37.) The 10K did not, however, address the Preferred Holders’ conversion rights under section 8 — the provision containing the alleged malpractice. (Id.)

Plaintiff’s memorandum also argues that a 1999 bond offering in connection with a merger is further evidence of a continuing representation with respect to the 1997 COD. (Pl.’s Opp. 15-16.) Plaintiff contends that PW’s opinion letter in that offering, incorporated into the Registration Statements of those notes (Form S-4s), brings this representation within the continuing representation doctrine. (FAC P 21.) In the opinion [*22] letter, PW states that, "[i]n connection with this opinion . . . we have examined . . . those corporate records of the Company as we have considered appropriate, including copies of its Amended and Restated Certificate of Incorporation." (See Gluckow Supp. Ex. D (Form S-4, filed by Metromedia International Group, Inc. on Aug. 31, 1999) & Ex. E (Form S-4/A, filed by Metromedia International Group, Inc. on Sept. 24, 1999).) Plaintiff concludes that, because the COD "amends" the Certificate of Incorporation, "Defendant flatly admitted it ‘examined’ the COD in connection with the merger." (Pl.’s Opp. 15-16.) Similarly, Plaintiff alleges that PW analyzed the effects of the new issue on the Preferred Stock: "a 10K405 filing states that the indenture for the senior discount notes limits the ability of MIG and certain of its subsidiaries to, among other things, incur additional indebtedness or issue capital or preferred stock." (FAC P 21.) 8
 

The statute of limitations in legal malpractice in NY is three years, pursuant to CPLR 214(6).  It is a "bright line" rule, and can be both harsh and unbending.  There are exceptions, and there are question as to when the statute  begins to run.  A recent US District Court case, in Southern District of New York, authored by Judge Sullivan has an excellent discussion of the origins of the rule, of continuous representation and its relation to the continuous treatment concept of medical malpractice, and how it impacts transactional work, which has negative results years later.  We’ll discuss this case today and tomorrow.

MIG, INC., v. PAUL, WEISS, RIFKIND, WHARTON & GARRISON, L.L.P., No 09 Civ. 5593 (RJS)UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2010 U.S. Dist. LEXIS 29548;  March 29, 2010.  While the facts of the case are somewhat complicated and deal with corporate documents and share holding issues, the legal malpractice issue is simpler.  It is alleged that Paul Weiss made mistakes in the drafting of corporate documents in 1997 that had real world consequences in 2009.  During the period between drafting and an adverse outcome in the Chancery Court of Delaware, Paul Weiss worked on the issue, billed the client on the issue, made presentations and wrote letters on the issue.  Does this amount to continuous representation?

From the decision: "New York’s statute of limitations for legal malpractice is three years. See N.Y. C.P.L.R. § 214(6). The claim accrues when the [*17] malpractice is committed. Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 750 N.E.2d 67, 726 N.Y.S.2d 365 (2001). Accordingly, the three years begins to run "when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court." Williamson ex rel. Lipper Convertibles, L.P. v. PricewaterhouseCoopers LLP, 9 N.Y.3d 1, 8, 872 N.E.2d 842, 840 N.Y.S.2d 730 (2007) (quotation omitted); accord McCoy v. Feinman, 99 N.Y.2d 295, 301, 785 N.E.2d 714, 755 N.Y.S.2d 693 (2002). "In most cases, this accrual time is measured from the day an actionable injury occurs, even if the aggrieved party is then ignorant of the wrong or injury." McCoy, 99 N.Y.2d at 301 (quotation omitted).

New York does, however, recognize a limited exception to the three-year bar. The continuing representation doctrine "’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 manner in which the services are rendered."’ Shumsky, 96 N.Y.2d at 167 (quoting Greene v. Greene, 56 N.Y.2d 86, 94, 436 N.E.2d 496, 451 N.Y.S.2d 46 (1992)). In such cases, the three-year statute of limitations will not begin to run until the representation ends. See Glamm v. Allen, 57 N.Y.2d 87, 94, 439 N.E.2d 390, 453 N.Y.S.2d 674 (1982).

The [*18] continuing representation doctrine is an exception, however, and not the rule. "Application of the [continuing representation doctrine is] . . . generally limited to the course of representation concerning a specific legal matter," Shumsky, 96 N.Y.2d at 168, and courts must determine "’whether there has been continuous treatment, and not merely a continuing relation’" between the attorney and client. Id. at 168 (quoting McDermott v. Torre, 56 N.Y.2d 399, 405, 437 N.E.2d 1108, 452 N.Y.S.2d 351 (1982)) (borrowing rationale from medical malpractice cases). Thus, "the doctrine is not applicable to a client’s or patient’s continuing general relationship with a lawyer or physician involving only routine contact for miscellaneous legal representation or medical care, unrelated to the matter upon which the allegations of malpractice are predicated." Id.; accord Williamson ex rel. Lipper Convertibles, L.P, 9 N.Y.3d at 9 ("The [continuing representation doctrine] does not apply to a continuing general relationship between patient and physician or to situations where the patient initiates routine, periodic examinations to check a condition."). Rather, the continuing representation doctrine is only applicable "where the continuous [*19] representation pertains specifically to the matter in which the attorney committed the alleged malpractice." Id.; cf. W. Vill. Assocs. Ltd. P’ship v. Balber Pickard Battistoni Maldonado & Ver Dun Tuin, PC, 49 A.D.3d 270, 854 N.Y.S.2d 340, 341 (1st Dep’t 2008) ("The pleading must assert more than simply an extended general relationship between the professional and client, and the facts are required to demonstrate continued representation in the specific matter directly under dispute.")"  More tomorrow.