It should be fairly easy to determine when the statute of limitations ends, no?  In legal malpractice, one must commence an action within three years of when the cause of action accrues, unless there continues to be "continuous representation."  When does the cause of action accrue?  This question remains thorny, and not always easily resolved.  Here, as an example is 730 J & J, LLC v Polizzotto & Polizzotto, Esqs. ;2010 NY Slip Op 00244 ;Decided on January 12, 2010 ;Appellate Division, Second Department  found that the statute had not expired some 6 years after the "error" and at least 5 years after another specified date that defendants argued was the start:
 

"Summary judgment based on the defense of the statute of limitations requires that a defendant make a prima facie showing that an action to recover damages for legal malpractice was filed more than three years after the cause of action accrued (see CPLR 214[6]; Rachlin v LaRossa, Mitchell & Ross, 8 AD3d 461), when "all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court" (McCoy v Feinman, 99 NY2d 295, 301 [internal quotation marks omitted]). An action to recover damages for legal malpractice is deemed to accrue on the date the [*2]malpractice was committed, not when it was discovered (see Shumsky v Eisenstein, 96 NY2d 164, 166).

Under the doctrine of "continuous representation," the three-year statue of limitations for legal malpractice is tolled while the attorney continues to represent the client in the same matter in which the malpractice allegedly occurred, after the alleged malpractice is committed (Shumsky v Eisenstein, 96 NY2d at 168). The parties must have a "mutual understanding" that further representation is needed with respect to the matter underlying the malpractice claim (McCoy v Feinman, 99 NY2d at 306).

Here, the defendant failed to establish its prima facie entitlement to summary judgment dismissing the legal malpractice cause of action by demonstrating that the statute of limitations expired (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Accordingly, the Supreme Court properly denied that branch of the defendant’s motion which was for summary judgment dismissing the complaint as time-barred without prejudice to renewal after completion of discovery.

Plaintiff starts a case on their own, and then when they get near trial, hire the defendant attorneys to represent them in an action for personal injury to their child either at school, or due to the alleged negligence of the School district.  The attorneys take over, and are said to agree that they can provide a doctor/expert and obtain all the necessary medical records to try the case.

Defendants take the case off the trial calendar, work/fool around with it for a few months, then "Plaintiffs were given one year to restore the case to the calendar but failed to timely comply, and defendant subsequently refunded plaintiffs’ retainer and terminated the representation. Six months after their time to do so had expired, plaintiffs moved, pro se, to restore the case to the calendar. Supreme Court (Meddaugh, J.) denied the motion and dismissed the case with prejudice retroactive to June 14, 2005, finding that plaintiffs "set forth no meritorious claim [and] no reasonable excuse for their failure to restore the case to the calendar within [one] year of the case being struck." Plaintiffs’ subsequent pro se submission, attaching affidavits, letters and reports from plaintiffs’ medical providers was deemed a motion to renew/reargue. In denying that motion, the court noted that the papers submitted with that application "were couched in only the most conclusory terms and failed to establish any causal connection between any allegedly improper conduct by [the school district] and the [infant’s] medical conditions."
 

Plaintiffs sue for legal malpractice and defendants move to dismiss the complaint.  The Court’s decision reads: "Defendant’s attempt to invoke collateral estoppel is unavailing. Plaintiffs’ motion to restore their case against the school district to the calendar required a showing of merit sufficient to establish a triable issue of fact (see Alise v Colapietro, 119 AD2d 921, 922 [1986]) and conclusory allegations are inadequate in that setting (see Fountain v Village of Canastota, 219 AD2d 781, 782 [1995]). In contrast, on defendant’s motion to dismiss, plaintiffs’ allegations, including conclusory allegations in supporting affidavits, are deemed to be true (see Berry v Ambulance Serv. of Fulton County, Inc., 39 AD3d 1123, 1124 [2007]). Defendant, therefore, failed to carry his burden to establish an identity of issues between the two actions and is not entitled to invoke the doctrine of collateral estoppel (see Cary v Fisher, 149 AD2d 890, 891 [1989]).

On the record before us, plaintiffs have stated a cause of action for legal malpractice. "’In order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action "but for" the attorney’s negligence’" (Leder v Spiegel, 9 NY3d 836, 837 [2007], cert denied Spiegel v Rowland, ___ US ___, ___, 128 S Ct 1696 [2008], quoting AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007] [internal citation omitted]). Although plaintiffs’ evidence may be insufficient to withstand a motion for summary judgment, on an unconverted preanswer motion to dismiss, plaintiffs’ allegations are accepted as true and are entitled to the benefit of every reasonable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Rovello v Orofino Realty Co., 40 NY2d 633, 634 [1976]).

How does one prove legal malpractice, and what documents are necessary to support a successful legal malpractice case?  A colliery to that question is how do you get those documents, and when is a request too broad, and when does a demand go to far?  An illustration of a request which went too far is found in Aaron v Pattison, Sampson, Ginsberg & Griffin, P.C. ;2010 NY Slip Op 00342 ;Decided on January 14, 2010 ;Appellate Division, Third Department .
 

Aaron asked for: "documents showing Katzman’s time entries and billings related to other client matters; documents showing Katzman’s employment contracts, partnership agreements and income; evidence of loans to Katzman by PSGG; evidence of any malpractice suits against Katzman; claims against Katzman made to the Committee on Professional Standards; documents showing Katzman’s absences from work, including vacation, personal and sick time; and documents pertaining to Katzman’s reviews, disciplinary actions, internal grievances, demotions and promotions. "

Instead of getting such documents, he ended up paying attorney fees to the other side.  "As Aaron has failed to demonstrate that these materials are in any way material and necessary to proving a claim of legal malpractice (see AmBase Corp. v Davis Polk & Wardwell, [*3]8 NY3d 428, 434 [2007]) or to defending against PSGG’s claims for counsel fees, the motion to compel must be denied (see CPLR 3101 [a]). Furthermore, under the same rationale, we find that Supreme Court did not abuse its discretion in granting the protective order (see CPLR 3103 [a]). Nor do we find an abuse of discretion in the award of counsel fees and costs on the motion (see 22 NYCRR 130-1.1 [a]). As set forth in the court’s amended order, Aaron’s motion to compel the production of the patently immaterial and unnecessary information detailed above was nothing more than a "fishing expedition" made for the "illegitimate purpose" of "uncovering facts supporting insufficient, conclusory allegations."

in Lyons v Cronin & Byczek, LLP 01/06/2010 2010 NYSlipOp 30006(U Plaintiff started an employment discrimination case against the LIRR and while it was pending, filed a petition in Bankruptcy.  How this fact was not known to his attorneys, or the LIRR is not explained, but he settled the case and accepted the proceeds.  Later, after being discharged in Bankruptcy.

He was dissatisfied with the settlement, and retained the target attorneys to sue his former attorneys.  In this round it was established that he had filed bankruptcy during the pendency of the underlying case, and the rule is that he lost rights to that case at the moment that the petition was filed.  It belonged to the debtor’s estate, to be administered by the Chapter 7 trustee.

So, case dismissed.  Now he sues his own attorneys, saying that they should have known.  If they knew, they also should have known that he could move to reopen the bankruptcy, amend the petition and schedules, have the trustee cede the cause of action back to him, and refile under CPLR 205. They didn’t, and this forms the basis of his second legal malpractice action.

Currently, motion for summary judgment by the target attorney was dismissed.

It’s popularly thought that legal malpractice is all about the mistakes made by an attorney.  While that is the first elements of legal malpractice, there are far harder hurdles to jump in a successful case.  Mistakes, or problems in the way a case was handled are not that difficult to fine, attorneys being human, and the natural law of imperfection still remains in effect.

A successful legal malpractice case requires departure, proximate connection with some financial loss, ascertainable collectible  damages and proof that the attorney’s mistake was the real ["but for"] reason for the financial loss.  In Route 9A Realty Corp. v. Vincent A. DeIorio Law Firm, 015931/06;Decided: January 6, 2010; Justice Ute Wolff Lally  we see defendants showing how the last three elements often decide how a case ends.

"According to the complaint, "[d]uring the period 1998 through 2002, on at least two occasions, defaults occurred on the payments due pursuant to the tax installment agreement." Further, "[o]n or about July 31, 2002 the Town commenced a tax foreclosure proceeding against numerous property owners, including Route 9A which allegedly owed taxes in the amount of $105,905.75.The last day to redeem the property was November 7, 2002.On or about August 8, 2002 the plaintiff retained the defendants attorneys (the Firm) as counsel for the plaintiff in the Tax Foreclosure Action.

It is alleged that from the time the Firm was retained until the November 7, 2002 redemption date, the Firm did not advise the plaintiff that if the taxes were not paid by the redemption date, it would lose all right, title and interest in the Property.

The complaint also alleges as follows: the firm breached its duty of care to the plaintiff by failing to research and correctly interpret provisions of the Real Property Tax Law; by failing to perfect an appeal; and by failing to ensure that plaintiff would be able to recover and develop the Property. Moreover, the plaintiff alleges it "had the financial wherewithal to obtain the necessary monies to satisfy the outstanding taxes." However, in December 2005 a judgment of foreclosure was entered as a result of which the plaintiff lost its right, title and interest in the Property and its right to develop the Property.

In opposition to the motion for summary judgment the plaintiff contends that from February 7, 2002, to December 5, 2004, defendants led plaintiff to believe the property would not be lost even if a foreclosure occurred, but rather could be recovered at auction. In support of this assertion, plaintiff refers to the deposition of Bernard Deutsch. However, the one page of the Deutsch transcript, a copy of which is annexed to the Notice of Cross Motion does not support plaintiff attorney’s claim. Nor does Exhibit 18 support plaintiff’s attorneys’ claim that "defendants insisted that plaintiff could buy back the property, pay the taxes, receive the proceeds from the sale over and above the taxes." In further opposition to defendants’ motion for summary judgment the plaintiff submitted a 10-page affidavit by David C. Wilkes, a purported expert on real property tax matters. Plaintiff’s expert opines that "[i]n my opinion, an ordinary attorney with reasonable skill and ability, after having read the installment agreement, would have advised plaintiff the only manner in which to retain the property was to pay the taxes. Without such payment, the Town was entitled to awny [sic] entry of judgment as of the redemption date of November 7, 2009. However, it is clear from the testimony of defendant Patrick V. Deiorio, he advised the plaintiff that if the taxes were not paid by the redemption date the plaintiff would risk losing the property. Plaintiff has failed to present any documentary evidence to support the conclusory allegations that the plaintiff had sufficient resources to pay the taxes as of the redemption date. Plaintiff does not refute defendants’ assertion that as of the redemption date, the plaintiff owed debts in excess of $1.2 million. Nor does plaintiff establish its ability to pay the taxes, its access to funds, its ability to borrow such funds or its desire to borrow said funds."

For those with any knowledge of the history of the statute of limitations in legal malpractice, there was once a time in which a three year s/l for tort and a six year s/l for contract existed.  Under the Court of Appeals in Santulli it was permissible.  In response the Legislature passed CPLR 214-6:

" an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort; "

Now, however, we see a quasi-legal malpractice cause of action with a 6 year s/l:  disgorgement of excessive fees.  In Loria v Cerniglia ;  2010 NY Slip Op 00112 ;  Decided on January 5, 2010
Appellate Division, Second Department  the court reversed and remanded to Supreme Court for trial on the issue of excessive fees even when it decided that the s/l for legal malpractice had passed.
 

"The Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the first cause of action, alleging legal malpractice, as time-barred. The action was commenced on August 14, 2008, and the three-year statute of limitations (see CPLR 214[6]) began to run on August 12, 2005, when the plaintiff signed a consent to change attorney form, relieving the defendant as counsel in the underlying action (see Frost Line Refrig., Inc. v Gastwirth, Mirsky & Stein, LLP, 25 AD3d 532, 532-533; Sommers v Cohen, 14 AD3d 691, 692; Marro v Handwerker, Marchelos & Gayner, 1 AD3d 488, 488; Daniels v Lebit, 299 AD2d 310, 310).

However, the second cause of action, alleging that the defendant charged an excessive fee, was not duplicative of the first cause of action, and should not have been dismissed (see Boglia v Greenberg, 63 AD3d 973, 976). "

In Denenberg v Rosen ;2010 NY Slip Op 00081 ;Decided on January 7, 2010 ;Appellate Division, ;First Department ; Moskowitz, J. the question of when the relationship begins between client and attorney is discussed.  Plaintiff, who was a knowledgeable investor, as a commodities trader, formed a retirement account that was ultimately disallowed by the IRS.  He incurred big losses.
At the time he formed the tax shelter, his accountants used the name of a law firm to highlight the deal.  Bryan Cave had issued an opinion letter, but in this case it was to be narrowly construed.

"The marketing materials included an opinion letter that Smith and Bryan Cave had issued, on September 10, 1999, to Hartstein/ECI expressing that the Pendulum Plan was legal. The opinion letter contained the caveat that it was solely for ECI:

"This opinion is solely for the information of ECI Pension Services, LLC and its professional advisors. We have not considered whether adoption of the Plan would be appropriate for any particular employer. …"

Privity is the relationship between client and attorney.  At the strongest, there is a contractual relationship, undisputed, between them.  At the far reaches, on some occasions, an opinion letter upon which a person might reasonably rely has been sufficient.

Here, it was not enough. "The motion court should have dismissed the legal malpractice claims against Bryan Cave and Smith because no attorney-client relationship existed in 2002. The motion court was correct that the tax opinion letter was insufficient to support an attorney- client relationship, considering the letter stated it was for ECI solely and contained disclaimers cautioning readers to procure tax advice tailored to their specific plan. The motion court was also correct that the limited power of attorney was insufficient to show an attorney-client relationship as that document could also have [*7]authorized nonattorneys to act on behalf of plaintiff. The limited power of attorney only authorized Bryan Cave to represent "Robert A. Dennenberg, a Sole Proprietorship Defined Benefit Pension Plan" before the IRS and only for "Form 5307," which was the application submitted to the IRS for it to determine whether to approve the Plan. Plaintiff does not contend that Bryan Cave was negligent in submitting the Form 5307.

However, the motion court improperly relied on plaintiff’s entirely conclusory allegations that plaintiff retained the services of Bryan Cave in 2001 to support the legal malpractice claim. Plaintiff points to no communications with Bryan Cave for legal advice about implementation of the Plan. Plaintiff offers no objective facts or actions to show the existence of an attorney-client relationship or the parties’ mutual agreement that Bryan Cave would perform ongoing legal services for plaintiff. "

We have written that legal malpractice cases arise from a large base of underlying matters.  Here is a huge NY case that starts in Austria, travels east to Russia, and then is dismissed in New York.  In this story from the NYLJ by Nate Raymond we see how an Austrian Bank which lost it all in Russia came to New York to sue and lose a legal malpractice case against Chadbourne & Parke.

"Chadbourne in 2004 lost a bid to have the case tried in Russia instead of New York (NYLJ, June 14, 2004). The firm had better success in 2007, when a divided First Department, Appellate Division, panel ruled that the bank had waived its right to attorney client privilege (NYLJ, April 5, 2007).

Creditanstalt, with advice from the Denver-based firm of Holme Roberts & Owen, in 1996 acquired the assets of a Russian company engaged in securities brokerage activities. The bank then allegedly turned to Holme Roberts for advice on a legal structure that would allow its clients to invest in Russian securities. Those securities included Gazprom, the Russian natural gas giant.

Holme Roberts closed its Moscow office in 1998 as its team there joined Chadbourne, which took over the Creditanstalt relationship. The bank said Chadbourne provided a legal opinion on the structure’s legality, specifically with regards to a decree by President Boris Yeltsin in 1997 limiting the extent foreign entities could invest in Gazprom. It also issued a risk assessment letter in 1998 advising on the legality of the structure.

Creditanstalt claimed Chadbourne later realized its advice was faulty but failed to tell the bank. It also claimed Chadbourne failed to warn about any potential repercussions. Chadbourne disputed that its advice was wrong and claimed it warned the bank of tax and political consequences of the structures."