Continuous representation was once determined almost solely by the date of transfer of representation.  Either a consent to change attorney or a court order determined the last day of representation and hence the end of continuous representation.  Then came Aaron v. Roemer  which held that communications showing a total breakdown of the attorney-client relationship marked the end of continuous representation, even though the order came days later.  Those few days made a great difference.

Consolidated Edison Co. of N.Y., Inc. v Armienti,  Debellis & Whiten, LLP  2019 NY Slip Op 31123(U)  April 17, 2019  Supreme Court, New York County   Docket Number: 152730/2018
Judge: William Franc Perry reaches a similar conclusion, and, sub rosa holds that Con Ed would have lost for many other reasons as well.

“Under CPLR 214(6), a plaintiff must commence an action to recover damages for legal malpractice within three years from the date of the alleged malpractice. “The period of limitations in a legal malpractice action begins to run when the malprac~ice is committed … , not when the client discovers the injury/’ (Wells Fargo Home Mortgage, Inc. v Zeichner, Ellman & Krause, LLP, 5 AD3d 128, 128-29 [1st Dept 2004] [internal citation omitted]). “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'” (McCoy v. Feinman, 99 N.Y.2d 295, 301 [2002], quoting Ackerman v. Price Waterhouse, 84 NY2d 535, 541 [1994]). “[W]hat is important is when the malpractice was committed, not when the client discovered it” (Hahn v Dewey & .LeBoeuf Liquidation Tr., 143 AD3d 547, 547 [1st Dept 2016] [internal quotation marks and citations omitted]).

Here, the actions giving rise to Con Edison’s claims for legal malpractice occurred in 2005 and 2006. Accordingly, to survive dismissal, Con Edison must establish that the statute of limitations was tolled pursuant to the continuous representation doctrine until at least March 27, 2015, which date is three years prior to Con Edison’s commencement of this action. The “continuous representation doctrine tolls the statute of limitations … where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (Zorn v Gilbert, 8 NY3d 933, 934 [2007], quoting McCoy v Feinman, 99 NY2d 295, 306 [2002]; see also Shumsky v Eisenstein, 96 NY2d 164, 167-168 [2001J). The purpose of the continuous representation doctrine is to avoid forcing a client to jeopardize the relationship with the attorney handling his or her case during the period that the attorney continues to represent them (Waggoner v Caruso, 68 AD3d 1, 7 [1st Dept 2009], af(d, 14 NY3d 874 [2010]). “An attorney-client relationship would certainly be jeopardized by a client’s allegation that his or her attorney committed   malpractice while representing the client” (id. [citation omitted]). The application of the continuous representation doctrine in an action for attorney malpractice “envisions a relationship between the parties that is marked with trust and confidence. It is a relationship which is not sporadic but developing and involves a continuity of the professional services from which the alleged malpractice stems” (Frenchman v Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP, 24 Misc 3d 486, 498 [Sup Ct New York Cnty 2009], quoting Muller v Sturman, 79 AD2d 482, 486 [4th Dept 1981]; see Henry v Leeds & Morelli, 4 AD3d 229 [1st Dept 2004]). For the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” (Luk Lamellen U Kupplungbau GmbH v Lerner, 166 AD2d 505, 507 [2d Dept 1990]).

Here, Armienti argues that Con Edison’s claims accrued, at the !atest, on March 24, 2015, three years after Everest and Con Edison directed Armienti to transfer the Casas file to Heidell and notified Armienti that Heidell would be taking over the defense of Con Edison in the Casas Action. Armienti further argues that a breakdown in the relationship of trust and confidence between Con Edison and Armienti is demonstrated by the two letters from Con Edison’s in-house counsel to Armienti in December of 2014, which letters requested all documents regarding the alleged acts constituting legal malpractice in this action, and challenged the propriety of Armienti’s discontinuance of the third-party action against Nelson in 2005. In opposition, Con Edison argues that Armienti’ s representation of Con Edison for purposes of the continuous representation doctrine continued until the execution of their Consent to Change Attorneys on April 13, 2015 (Complaint,

In a given case, the Consent to Change Attorney may reflect the erid date of an attorneyclient relationship, in the absence of other evidence that establishes an earlier date (see Louzoun v. Kroll Moss & Kroll, LLP, 113 A.D~3d at 602, 979 N.Y.S.2d 94 [2d Dept 2014]). While, “from the standpoint of adverse parties, counsel’s authority as an attorney of record in a civil action continues unabated until the [attorney’s] withdrawal, substitution, or discharge is formalized” in accordance with CPLR 321, “[a ]n affirmative discharge of an attorney by the client is immediate” (Farage v Ehrenberg, 124 AD3d 159, 165 [2d Dept 2014] [citations omitted]). Thus, where evidence establishes that a client affirmatively discharged their attorneys prior to the
execution of a Consent to Change Attorney, the Consent to Change Attorney does not, in and of itself, serve as a basis to toll the statute of limitations (see Frenchman v Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP, 24 Misc 3d 486, 504-05 [Sup Ct New York Cnty 2009] [holding notice of substitution, signed by defendant on December 17, 2004, did not, in and of itself, serve as a basis to toll the statute of limitations under the continuous representation doctrine, where plaintiffs own letter to defendant in August of 2004 made clear that defendant was being replaced by other counsel]).”

Building is being sued by NYC for a public nuisance.  While the case is being litigated, building owner rents the storefront to a club.  Operating a club seems to be part of the public nuisance. Did the landlord know that renting it out (again?) to a club was a no-no?  Was the economic incentive too large?  Was it the attorney’s fault that the lease did not include certain phrases?  Jadidian v Drucker   2019 NY Slip Op 03033  Decided on April 24, 2019  Appellate Division, Second Department doesn’t exactly come to a conclusion on this question.

“The plaintiffs, who own certain commercial property in Queens, retained the defendant, an attorney, from 2009 until November 2014 to handle, inter alia, all matters relating to leasing the premises. In addition, in 2013 the defendant represented the plaintiffs in connection with an action commenced by the City of New York to abate a public nuisance(hereinafter the nuisance action). In October 2013, while the nuisance action was pending against the plaintiffs, the defendant negotiated and drafted a lease of the premises to the Hive Sports Bar and Grill, Inc. (hereinafter the Hive). The defendant did not disclose to representatives of the Hive that the premises were the subject of the ongoing nuisance action.

In May 2014, the defendant negotiated a stipulation of settlement with the City on behalf of the plaintiffs, resolving the nuisance action. In the stipulation of settlement, the plaintiffs agreed, among other things, that the premises would not be used for any type of cabaret or club. In November 2014, the City obtained a court order enjoining the use of the premises for any reason and directing that the premises be closed until further order of the court. The Hive, which had been operating a cabaret/club on the premises, commenced an action against the plaintiffs to recover damages, inter alia, for breach of the lease agreement and fraud, alleging that the plaintiffs leased the premises to the Hive knowing of its intended operations. The Hive alleged that the plaintiffs intentionally withheld disclosure of the nuisance action, in which the City had sought to enjoin any use of the premises for a period of one year, and that the premises were shut down in relation to the settlement of the nuisance action, causing the Hive to sustain monetary damages.

The plaintiffs settled the action commenced by the Hive, and then commenced this action against the defendant to recover damages for his alleged legal malpractice in the negotiation and drafting of the lease agreement with the Hive. The defendant moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. The Supreme Court denied the motion, and the [*2]defendant appeals.”

“Here, accepting the facts alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference, the complaint sufficiently alleges a cause of action to recover damages for legal malpractice. The complaint alleges that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by failing to account for the potential outcome of the nuisance action on the use and occupancy of the premises and to protect the plaintiffs’ interests in relation thereto. The complaint further alleges that the defendant’s negligence proximately caused the plaintiffs to sustain actual and ascertainable damages in lost rent and in settling the action brought by the Hive, and thus, validly states a cause of action to recover damages for legal malpractice (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 443; Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 847; Wolstencroft v Sassower, 124 AD2d 582). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.”

In Mamoon v Dot Net Inc.   2019 NY Slip Op 31053(U)  April 5, 2019 Supreme Court, New York County Docket Number: 652902/2013,  Judge Lucy Billings describes the intersection of privity and near privity in an accounting malpractice setting.

“Since accountants owe no duty to the public at large, “privity,” a contractual relationship or similar connection with a mutuality of interest between plaintiff and the Khan defendants, is a necessary
predicate for the Khan defendants’ liability. Parrott v. Coopers & Lybrand. L.L.P., 95 N.Y.2d 479, 483-84 (2000) i State of Cal. Pub. Employees’ Retirement Sys. v. Shearman & Sterling, 95 N.Y.2d
427, 434 (2000); Ossining Union Free School Dist. v. Anderson LaRocca Anderson, 73 N.Y.2d 417, 419 (1989); Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 553-54 (1985).
Consistent with the flexible concept of privity in different contexts, a party without contractual privity still may sustain a claim for malpractice if she maintained a relationship with the professional that was the functional equivalent of contractual privity. Alphas v. Smith, 147 A.D.3d 557, 558 (1st Dep’t 2017); Good Old Days Tavern. Inc. v. Zwirn, 259 A.D.2d 300, 300 (1st
Dep’t 1999); Town Line Plaza Assocs. v. Contemporary Props., 223 A.D.2d 420, 420 (1st Dep’t 1996). See AG Capital Funding Partners. L.P. v. State St. Bank & Trust Co., 5 N.Y.3d 582, 595
(2005); Learning Annex. L.P. v. Blank Rome LLP, 106 A.D.3d 663, 663 (1st Dep’ t 2013) . ”

“Plaintiff demonstrates a direct professional relationship with a mutuality of interest, near contractual privity, with the Khan defendants. She testified, and they do not dispute, that
she was the president and sole shareholder of the Khan defendants’ client, Dot Net, so that their work for Dot Net directly affected her livelihood. She further testified, continually referring to her amended complaint, that this effect was injurious, as their work rendered her personally liable for
credit card, contractual, and tax debts accrued by Dot Net.  Rubin Aff. Ex. C, at 132, 149, Ex. H ~~ 17-19, 69; Alphas v. Smith, 147 A.D.3d at 558; Good Old Days Tavern. Inc. v. Zwirn, 259 A.D.2d at 300. Khan’s deposition testimony that, knowing plaintiff was the sole shareholder of Dot Net, he met and advised her on tax issues relating to the corporation on two separate occasions further demonstrates a direct professional relationship between plaintiff and the Khan defendants. Rubin Aff. Ex. A, at13-16. “

Hudson Yards LLC v Segal  2019 NY Slip Op 30996(U)  April 5, 2019  Supreme Court, New York County Docket Number: 158606/2014 Judge: Andrea Masley describes the unraveling of the initial Hudson Yards real estate deal and the loss of $ 50M.  Even in NY these are big real estate numbers.  Legal Malpractice?  Supreme Court says it’s all too speculative.

“Hudson Yards LLC, an entity in which Singer served as managing member, purchased real estate in December 2005 and March 2006 (the premises). (NYSCEF Doc. No. 149at1f 15.) Hudson Yards LLC received a mortgage in the amount of $34,266,234 from Fortress Credit Corp (Fortress). (Id.) Singer guaranteed payment of the mortgage. (Id.; NYSCEF Doc. No. 153.) Hudson Yards LLC defaulted on  the payments and Fortress commenced a mortgage foreclosure action against Hudson Yards LLC and Singer, in his capacity as guarantor. (NYSCEF Doc. No. 149 at 16; NYSCEF Doc. No. 151.) On June 1, 2011, Fortress obtained a judgment of foreclosure and sale  (Id.) On September 7, 2011, Fortress purchased the premises at the sale with a winning bid of $2,500,000. (NYSCEF Doc. No. 162 at 6.) On December 4, 2013, this court (Kornreich, J) determined that the fair market value of the premises was $26,000,000, and subtracted that amount from the foreclosure judgment of
$47,779.544.36 pursuant to the Real Property Actions and Proceedings Law. (Id. at 32; NYSCEF Doc. No. 169 at 6.) The resulting deficiency judgment in the amount of $21,779,544.36 was issued against Singer, who subsequently commenced this action. (Id.; NYSCEF Doc. No. 169 at 6.) Here, Singer alleges that the defendants, his prior legal counsel in connection with the foreclosure action, committed malpractice resulting in the deficiency judgment now recast as damages inclusive of accruing interest.  (NYSCEF Doc. No. 149 at~ 37, 38.) Defendant DCS is an attorney and member of
defendant SSG. (NYSCEF Doc. No. 163 at~ 1.) Defendant OS is an attorney, the son of DCS, and an associate with SSG. (NYSCEF Doc. No. 210 at 15.) The gravamen of Singer’s malpractice claim is that defendants failed to exercise the ordinary, reasonable skill and knowledge commonly possessed by a member of the legal profession by failing to (1) memorialize an alleged agreement entered into by Singer and a Fortress employee, John Jergen, before the sale of the premises that would have prevented the deficiency judgment, (2) advise that this agreement, without memorialization, was
unenforceable, (3) advise Singer to persuade the other members of Hudson Yards LLC to seek bankruptcy protection for the LLC, (4) advise Singer to bid or persuade other individuals to bid during the sale of the premises, and (5) advise Singer to seek an adjournment of the sale. (NYSCEF Doc. No. 149 at 1f 36; NYSCEF Doc. No. 206 at 1, 2,8, 9.) ”

“Based on this record, even if DCS, SSG or DS negligently represented Singer in connection with the foreclosure action and deficiency judgment, Singer fails to establish any issues of fact as to proximate cause, mandating a dismissal. (Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005].) “Contentions underlying a claim for legal malpractice which are ‘couched in terms of gross speculations on future events and point to the speculative nature of plaintiffs’ claim,” are insufficient as a matter of law to establish that defendants’ negligence, if any, was the proximate cause of  plaintiffs’ injuries.” (Phillips Smith Specialty Retail Group II, LP., v Parker Chapin Flattau & Klimp/, LLP, 265 AD2d 208, 210 [1st Dept 1999].) Here, Singer’s argument is if defendants advised him that
the agreement was unenforceable or memorialized the agreement, he would not have to pay the deficiency judgment because he would have (1) persuaded the other members of Hudson Yards LLC to seek bankruptcy protection, (2) sought and received an adjournment of the sale, and (3) advised Malekan, Schreiber and Westreich to purchase the premises. This argument is, quintessentially, couched in terms of gross speculation on future events because it assumes that the other members of Hudson Yards LLC would have agreed to seek bankruptcy protection or that bankruptcy protection would have relieved Singer of his obligations to pay the balance of a debt he personally guaranteed. It assumes that adjournment of the sale would have been granted and within that time, Fortress would have entered into an enforce.able agreement with Singer to forego the deficiency judgment. Lastly, it assumes that Malekan, Schreiber, Westreich, and Singer would have bid on the premises. (see generally Ladera Partners, LLC v. Goldberg, Scudieri & Lindenberg, P.C., 157 A.D.3d 467, 468 [1st Dept 2018] [“The legal malpractice cause of action is not properly supported by conclusory allegations and speculation that, but for defendants’ negligence, plaintiff would have been able to … outbid the other participants at the auction].) Simply stated, “the hypothetical course of events on which determination of damages would have to be based, involving the nature and timing of acts by plaintiff[] … other parties having interests … and the bankruptcy court, constitutes a chain of ‘gross speculation on future events.”‘ (Phillips-Smith Specialty Retail Group II, LP., v Parker Chapin Flattau & Klimp, LLP, 265 AD2d at 210.) “

Cascardo v Dratel  2019 NY Slip Op 02957 Decided on April 18, 2019 Appellate Division, First Department is a combination legal malpractice, excessive billing, fraud breach of fiduciary duty case which had several claims weeded out for this plaintiff.

“Plaintiff’s fraud claim should have been dismissed because the complaint did not sufficiently plead justifiable reliance upon defendant’s claim that it needed an additional $10,000 to continue its work on her lawsuit. In fact, the complaint specifically asserts that plaintiff knew the additional $10,000 legal fee demanded by defendant would not be used for her benefit, but he required it because other clients had not paid him. This admission negates an element of the fraud claim, that plaintiff justifiably relied on the defendant’s alleged misrepresentation that “[defendants] needed $10,000 to continue their work [on her case]” (see Shalam v KPMG LLP, 89 AD3d 155, 157-158 [1st Dept 2011]; Havell Capital Enhanced Mun. Income Fund, L.P. v Citibank, N.A., 84 AD3d 588, 589 [1st Dept 2011]).

The claim for excessive legal fees (and the related discussion in the complaint of defendants’ alleged breach of fiduciary duty based on the alleged overcharges) was correctly sustained. Plaintiff alleged that “[her] fee bore no rational relationship to the product delivered,” and detailed that, in exchange for the $25,000 fee, defendants produced only a draft complaint that was essentially identical to the one that she had presented to them (see Johnson v Proskauer Rose LLP, 129 AD3d 59, 70 [1st Dept 2015]). This claim is not duplicative of the legal malpractice claim, as plaintiff’s complaints regarding the over billing were not a direct challenge to the quality of the work but instead a claim that the fee paid bore no rational relationship to the work performed (see Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d 415, 416 [1st Dept 2014]; Johnson, 129 AD3d at 70). To the extent that the motion court read the pro se [*2]complaint as alleging a separate cause of action for breach of fiduciary duty, these allegations are subsumed in the cause of action for excessive attorney fees.”

This lovely 1500 year old phrase starts the case of Long Island Real Props., Ltd. v US Bank N.A.  2019 NY Slip Op 30954(U)  April 2, 2019  Supreme Court, Suffolk County  Docket Number: 621122/2017.   Judge James Hudson quotes the medieval writer Tribonian to the effect that “A great number of unskilled practitioners ruins a Court. (2 Inst. 219)  He then goes on to catalog the errors in a Long Island real estate law suit, weaving in a discussion of Judiciary Law§ 487, itself a 750 year old part of the common law.

“If it is shown that the frivolous behavior misled the Court and was offered for the
purpose of deceiving same, the law provides a stem response. Judiciary Law §487 states in
salient part that ” … An attorney or Counselor who … [i]s guilty of any deceit or collusion, or
consents to any deceit or collusion, with intent to deceive the court or any party .. .is guilty of
a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he
forfeits to the party injured treble damages, to be recovered in a civil action.”
Liability for attorney deceit existed at New York common law before the first New
York statute governing such behavior was enacted, and thus, is subject to the six year statute
of limitation’s for actions for which no limitation is specifically provided by law (Melcher
v. Greenberg Traurig,LLP, 23NY3d19, 988NYS2d101, 11NE3d174,reargumentdenied
23 NY3d 998, 992 NYS2d 763, 16 NE3d 1241 [2014]). Applicable case law interpreting
Judiciary Law §487 demonstrates that the additional element “intent to deceive” is the factor levating it in opprobrium as compared with 22 NYCRR 130-1.1. (Tenore v. Kantrowitz,
Go/dliamer & Graifman, P.C., 121 A.D.3d 775, 776, 994 N.Y.S.2d 171 (2″d Dept. 2014);
see Lawrence Ripak Co., Inc. v. Gdanski, 143 AD3d 862, 39 NYS3d 223 [2d Dept 2016)). ”

Read the entire decision for Judge Hudson’s description of what he considers to be frivolous litigation.