Third-party practice between professionals is a major part of legal malpractice litigation.  Here, the defendant attorneys point the finger at accountants and argue that mistakes in the tax filings caused the damage of which they are accused.

Rubin v Duncan  2018 NY Slip Op 32934(U)  November 16, 2018  Supreme Court, New York County Docket Number: 154131/2015 Judge: Paul A. Goetz  discusses how the relationship between the attorney and the accountant might play out.

“Plaintiffs commenced the underlying malpractice action against defendants Duncan, Fish & Vogel LLP and one of_its principals, Richard E. Fish, seeking to recover damages for defendants’ alleged negligent representation of plaintiffs in litigation with Ace Investor LLC in Utah and the subsequent judgment enforcement and turnover proceedings brought by Ace in Utah and in the Southern District of New York.  The defendants thereafter filed a motion to dismiss the complaint, which was granted in part by the court. On appeal of this decision as well as the motions to reargue, the First Department held that the Marital Trust was the only plaintiff which had standing to assert the claims in the underlying malpractice action. The First·Department also dismissed the claims of the sole remaining plaintiff, the Marital Trust, except to the extent that the Marital Trust’s claims were based on: (1) the defendants’ alleged failure to obtain credit for the $200,000 plaintiffs paid against the note with Ace; (2) the deposition advice given to Margery Rubin; and (3) the legal fees incurred by plaintiff and its loss of any source of repayment of its loans to the other plaintiffs. Affirmation of Todd Belous dated May 14, 2018, Exh. E. ”

“Subsequently, defendants commenced a third-party action against the third-party defendants, who
provided accounting services to the trusts. Specifically, defendants/third-party plaintiffs alleged that the third-party defendants negligently prepared certain tax returns for one or more of the trusts and that the court relied on these erroneous tax returns in entering a judgment against the Marital Trust in the turnover proceeding. Belous Aff., Exh. G, mf 34-35. Accordingly, defendants/third-party plaintiffs asserted claims against third-party defendants based on contribution and indemnification. ”

“In their papers, third-party defendants fail to distinguish this case from the facts in Millennium. Although the third-party defendants in this case are accountants, and not lawyers, this distinction is not meaningful here as both accountants and lawyers can be held liable for malpractice. Third-party defendants also argue that unlike in Millennium, the third-party defendants provided independent accounting advice to the trusts and did not participate concurrently or successively with the defendants in connection with the claims asserted in.plaintiffs legal malpractice action. However, under CPLR 1401, a defendant may assert a claim for contribution against not only a joint tortfeasor, but also against “concurrent, successive, independent, alternative and even intentional tortfeasors.” Schauer v. Joyce, 54 N.Y.2d 1, 5 (1981) (emphasis added; internal citations and quotations omitted). The right to contribution exists among persons who are subject to liability in tort for the same injury, which is exactly what defendants/third party plaintiffs have alleged in their third-party complaint. Further, defendants’ affirmative defense of comparative fault against plaintiffs and their agents may not be sufficient to protect them against the alleged malfeasance of the third-party defendants. The affirmative defense was asserted prior to First Department’s decision dismissing all of the plaintiffs with the exception of the Marital Trust. According to defendants, the third-party defendants were retained by the now-dismissed plaintiff Robert M. Rubin to render accounting services, including preparing tax returns for the trusts. Thus, the remaining plaintiff may argue that the third-party defendants were not its agents since it did not retain them to provide accounting services. ”

“Moreover, the third-party defendants were not employees of the plaintiffs but rather were hired as
independent accountants, who were not subject to plaintiffs’ actual direction and control. See Feliberty v. Damon, 72 N.Y .2d 112, 118 (1988) (holding that insurer which retained outside counsel could not be held vicariously liable for law firm’s actions since the firm was an independent contractor which was not subject to the insurer’s actual direction and control). Thus, it is uncertain whether the actions of the third party defendants can in fact be imputed to the remaining plaintiff, and whether the remaining plaintiff can assert a viable defense to such a claim. Cf Arbor Realty Funding, LLC v. Herrick, Feinstain LLP, 2018 WL 163 8817 (Sup. Ct. N. Y. Cty. 2018) (distinguishing Millennium and relying on Hercules to dismiss third-party contribution claim where plaintiff in its motion papers acknowledged responsibility for the actions of the third-party defendants). Accordingly, the cause of action for contribution cannot be dismissed.
With respect to the third-party indemnification claim, it is well-established that “[t]he predicate for
common-law indemnity is vicarious liability without fault on the part of the proposed indemnitee, and it follows that a party who has itself participated to some degree in the wrongdoing cannot receive the benefit of the doctrine.” Kagan v. Jacobs, 260 A.D.2d 442, 442 (2d Dep’t 1999). Here, since the defendants/third-party plaintiffs actually participated to some degree in the alleged wrongdoing, they cannot claim indemnification. Id Accordingly, this cause of action must be dismissed. “

Brooklyn Med. Eye Assoc., LLC. v Rivkin Radler LLP, 
.2018 NY Slip Op 32913(U)  November 13, 2018 Supreme Court, Kings County Docket Number: 505978/18 Judge: Leon Ruchelsman is an example of what happens when a doctor to doctor business sale goes wrong.

“At the end of 2012 an entity called Craniofacial Surgery P.C., owned by Dr. Dominick Golio entered into a purchase· agreement to buy Brooklyn Medical Eye Associates, LLC [hereinafter ‘BMEA’] owned by Dr. George Hyman. Dr. Golio.   He executed a personal guaranty guaranteeing all the payments due to Dr. Hyman. Pursuant to a promissory note the first payment due to Hyman was not made and thereafter Dr. Hyman sued Dr. Golio in Nassau County and Dr. Golio was represented by defendant Rivkin Radler LLP in that action. Dr. Hyman moved seeking summary judgement in lieu of a complaint, however, such motion was denied on the grounds there were questions whether Dr. Hyman failed to transfer patients to BMEA pursuant to the agreement. Likewise, a motion to reargue was similarly denied. In a decision and order dated October 30, 2015 the Appellate Division reversed that determination holding that “the plaintiff established, upon reargument, his prima facie entitlement to judgement as a matter of law by proving the existence of a guaranty, the underlying debt, and the guarantor’s failure to perform under the guaranty” (id). The Appellate Division rejected the argument any unfulfilled obligations absolved the guarantor stating that “by
the plain language of the guaranty, the defendant was precluded from raising any defenses or counterclaims relating to the underlying debt” (id). Following that decision a judgement was
entered against Dr. Golio. ”

“The crux of plaintiff’s malpractice claim in this regard is that the defendants failed to, argue that additionally Dr. Hyman was actively soliciting BMEA’s patients in further violation of the purchase agreement. Stated simply, the plaintiff argues the defendant failed to argue additional breaches of the agreement by Hyman. However, the Appellate Division rejected the allegation Hyman’s failure to deliver the patient lists exempted Golio from making payment under the guaranty. This was based upon the legal principle, expressed by the Appellate Division, that the guaranty “is a
separate undertaking and a self-standing document … and properly served as the predicate for the plaintiff’s motion for summary judgement in lieu of complaint” (supra). The Appellate Division
further explained that “by its plain terms, and its broad, sweeping, and unequivocal language, the defendant’s guaranty forecloses any challenge to the enforceability and validity of the promissory note made by nonparty Craniofacial Surgery P.C.” and that “by the plain language of the guaranty, the defendant was precluded from raising any defenses or counterclaims relating to the underlying debt” (supra). Thus, the Appellate Division has unequivocally explained that there are no defenses that would have excused Golio from making payments under the guaranty. Thus, Golio has failed to present any basis that the defendant’s failure to present this specific argument would have resulted in a different conclusion. On the contrary, it is clear that no argument would have prevailed absolving Golio of his obligations under the guaranty. Golio argues that §9.2 of the purchase
agreement, a set-off provision would have surely entitled Golio to offset the amount owed due to Hyman’s breaches. However,  Hyman’s breaches of which the Appellate Division was aware and of
which arguments were presented were also sufficient to violate the restrictive covenants. Nevertheless, the Appellate Division ruled that no defenses to the guaranty were available. This
position likewise governs the actual solicitation allegedly committed by Hyman. Consequently, the third cause of action is hereby dismissed. “

Lopez v Lozner & Mastropietro, P.C.    2018 NY Slip Op 08017  Decided on November 21, 2018 Appellate Division, Second Department is a text-book lesson in how to calculate the legal malpractice statute of limitations in a motor-vehicle case where no case was started.  It is three years from the date of the motor-vehicle accident plus three years.

“In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Loren Baily-Schiffman, J.), dated May 4, 2017. The order, insofar as appealed from, granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging legal malpractice.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging legal malpractice is denied.

On November 4, 2011, the plaintiff, a pedestrian, allegedly was injured when he was struck by a motor vehicle. Thereafter, the plaintiff retained the defendant law firm, Lozner & Mastropietro, P.C. (hereinafter the law firm), to represent him in connection with the accident, and the law firm commenced an action on behalf of the plaintiff against the operator of the vehicle. In January 2017, the plaintiff commenced this action against the law firm and two of its principals, inter alia, to recover damages for legal malpractice. The plaintiff alleged that the driver of the offending vehicle was working for Domino’s Pizza, LLC (hereinafter Domino’s), making a pizza delivery at the time of the subject accident, and that the defendants were negligent in failing to timely commence an action against Dominos. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. In the order appealed from, the Supreme Court, inter alia, granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action to recover damages for legal malpractice.”

“Here, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the plaintiff stated a cause of action to recover damages for legal malpractice (see Tooma v Grossbarth, 121 AD3d at 1095-1096; Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d 587, 589; Reynolds v Picciano, 29 AD2d 1012, 1012). The evidentiary submissions did not establish that a material fact alleged in the complaint is not a fact at all and that no significant dispute exists regarding it (see Bodden v Kean, 86 AD3d at 526). Contrary to the defendants’ contention, the plaintiff was entitled to commence this legal malpractice action even though the underlying personal injury action was still pending, as the legal malpractice action accrued, at the latest, in November 2014 (see Johnston v Raskin, 193 AD2d 786, 787).”

In a fight of first impression, Defendant is battling to keep plaintiff from taking over defendant’s potential legal malpractice case against his attorney.  In this case, it seems that the Defendant and the attorney are childhood friends, and that Defendant would do almost anything (except pay plaintive) to protect the attorney.  What loyalty!

Borges v Placeres  2018 NY Slip Op 51622(U) Decided on November 2, 2018 Civil Court Of The City Of New York, New York County Ramseur, J. is unique in that one of the parties (not a lawyer-party)  is trying to keep a legal malpractice case from commencing.

“Plaintiff/Judgment Creditor Jose Borges moved, pursuant to CPLR 5225 and 5240, to compel assignment of Defendant/Judgment Debtor Alfred Placeres’s potential legal malpractice claim against Defendant’s friend and former attorney to satisfy Plaintiff’s judgment (motion sequence 023). In a June 27, 2018 decision and order, (Borges v Placeres, 60 Misc 3d 1033 [Civ Ct NY County 2018], the “Order”), the Court granted the motion and compelled assignment of the claim. Defendant now moves by order to show cause: (1) pursuant to CPLR 5015(a)(4), to vacate the Order nunc pro tunc for lack of jurisdiction; pursuant to CPLR 2221(d), to reargue the Order; and (3) for an order directing Plaintiff to withdraw the action commenced as assignee (mot seq 024). As detailed below, reargument is granted, and the Court adheres to its original determination.”

“Similarly, where property value is not only unclear but arguably ummarketable, thus rendering it “unlikely that a turnover to the sheriff would result in satisfying the judgment,” courts have also directed turnover to a receiver to do any act “designed to satisfy the judgment” (see CPLR 5228; Udel v Udel, 82 Misc 2d 882, 884 [Civ Ct NY County 1975] [on motion of creditor, appointing receiver “to do any act designed to satisfy the judgment, including dissolution of the corporation as provided in section 1511 and section 1001 of the Business Corporation Law”]; accord Hotel 71 Mezz Lender LLC v Falor, 14 NY3d 303, 317 [2010] [“A receivership has been held especially appropriate when the property interest involved is intangible, lacks a ready market, and presents nothing that a sheriff can work with at an auction, such as the interest of a psychiatrist/judgment debtor in a professional corporation of which he is a member.”]). Moreover, the Court has “broad supervisory powers over the sheriff in conjunction with the enforcement of judgments,” including the power to “direct the sheriff to dispose of, account for, assign, return or release all or any part of any property or debt, or the proceeds thereof” (Siegel/Reilly, Practice Commentaries, CPLR 5238 C5238:1 [emphasis added] [“The list of verbs contained in CPLR 5238—dispose of, account for, assign, return, release, and in respect of both the property and the proceeds—is in this respect illustrative and not exclusive.”]; New York City Civil Court Act § 701; see also CPLR 5233[c] [“The court may direct immediate sale or other disposition of property with or without notice if the urgency of the case requires.”] [emphasis added]).Here, principles of equity favor direct assignment of the legal malpractice claim to Plaintiff. First, the value of the claim is unclear, and thus may garner no bids of value at a sheriff’s auction. Indeed, Defendant has argued vehemently, in the original motion and here, that the claim is worthless and urges the Court to order a sheriff’s sale to permit the public, including Defendant, to engage in a valueless, time-consuming formality. Second, multiple courts have noted Defendant’s obstruction of Plaintiff’s efforts to pursue the judgment, particularly in relation to Defendant’s only confirmed asset of potential value: the malpractice claim (see Order at 2). As recently as this Order to Show Cause, Defendant has stated — notably for the first time — that a sheriff’s sale would afford the opportunity to “consider trying to borrow money (if he could) and buy [the malpractice cause(s) of action] for himself in order to protect his former attorneys [*4](including a childhood friend) from frivolous and legally-baseless claims” (Def Memo at 16). In other words, Defendant disingenuously seeks another opportunity to continue to frustrate Plaintiff’s collection efforts. Principles of equity, judicial economy, and public policy counsel against that outcome.”

“Accordingly, it is hereby

ORDERED that Defendant’s motion to vacate and reargue (motion sequence 024) is GRANTED solely to the extent that the branch of Defendant’s motion seeking reargument on the issue of whether the Court erred in assigning the potential malpractice cause of action directly to Plaintiff rather than directing a turnover to the sheriff is GRANTED; and it is further

ORDERED that upon reargument, the Court adheres to its original determination; and it is further

ORDERED that all other branches of Defendant’s motion are DENIED; and it is further

ORDERED that, within 10 days of receipt, Plaintiff shall serve this order with notice of entry upon all Defendants.

This constitutes the decision and order of the Court.”

Judge Ruchelsman spends time peeling back the onion layers in Woodcock v Birnbaum
2018 NY Slip Op 32841(U) November 7, 2018 Supreme Court, Kings County Docket Number: 507014/18 to come to the decision on whether there was a violation of Judiciary Law § 487.  Eventually, he finds that arguments were insufficient, but not deceitful.

“During the fall of 2011 the plaintiff and Ingo Nowottny incorporated an entity called Century First Credit Solutions lnc . , [hereinafter ‘ CFCS’) and each was a fifty percent owner of that entity . On December 22 , 20 11  Ingo Nowottny formed nominal defendant United Credit Solutions, Inc . , [hereinafter ‘ UCS ‘ ) . On March 1 , 2012 Woodcock purchased half the shares of UCS and thus
became equal shareholders in both corporat i ons . On November 6, 2014 Nowottny ‘ s sister formed another entity, the similarly called United Credit Solvers, Inc ., and then entered into an agreement to purchase some of the assets and book of business of UCS . The relationship between Nowo ttny and Woodcock soured and Woodcock formed another entity Named Priority Capital LLC to
compete with Nowottny without Nowottny ‘ s ownership interests.

Indeed, both Nowottny and Woodcock accused the other of stealing proprietary information from their joint corporations and utilizing the information in their wholly owned corporations. First , on August 25 , 2015 Woodcock through counsel sent Nowottny  a cease and desist letter accusing Nowottny of representing to clients that United Credit Solvers is really UCS and demanding
Nowottny discontinue this activity. A few days later a lawsuit was filed in an action entitled Century First Credit Solutions Inc. , v . Priority Capital LLC , Christian Woodcock and John Amato ,
Index Number 653287/2015 in New York County . In that action , the plaintiff Century First Credit Solutions Inc . , owned by Nowottny, sued Woodcock, alleging he misappropriated trade secrets,
converted corporate funds and tortuously interfered with contractual relations, among other claims.  Specifically , the complaint alleged Woodcock and John Amato , a former  sales representative and independnt contractor of CFCS , formed Priority Capital LLC and utilized the information misappropriated in the new entity . Woodcock filed a third party complaint against Nowottny and his brother William Nowottny alleging they interfered with Priority and actually fraudulently represented themselves as employees of Priority to steal Priority’ s business
for their own businesses. ”

“Lastly, concerning Judiciary Law §487, it is well settled that to establish such a cause of action the plaintiff must present evidence an attorney acted “with intent to deceive” either the court or any party (see, Moormann v. Perini Hoerger, 65 AD3d 1106, 886 NYS2d 49 [2d Dept . , 2009]). The allegations concerning the deception must be pled with particularity (Betz v . Blatt, 160 AD3d 696 , 74 NYS3d 75 [2d Dept ., 2018]).

First, it must be noted that the Second Department no longer maintains a cause of action pursuant to Judiciary Law §487 based upon an attorney’s egregious, extreme or chronic delinquent activities. Rather, “the only liability standard recognized in Judiciary Law §487 is that of an intent to deceive” (Dupree v . Vorhees, 102 AD3d 912 , 959 NYS2d 235 [2d Dept. , 2013]) .

Second, considering the intent to deceive, such intent can hardly be demonstrated . Indeed, GM acknowledged to the court as well as to the plaintiff that such representation was being undertaken . In Judge Bannon’ s decision dated January 25 , 2017, she noted that in opposition to the motion to disqualify the plaintiff there, CFCS argued that “Woodcock is only a former client of Greenspoon Marder, that any representation of Woodcock in Florida was only provided in connection with Woodcock role as a 50% owner of Century, that personal representation of Woodcock by Greenspoon Marder in Florida , if any, was not substantially related to the instant matter” (supra). Thus, GM ‘ s representation in the New York matter was not ‘ deceptive ‘ in any manner, rather, GM simply argued the representation was not legally proscribed. While they failed to prevail upon such argument , which comprises the causes of action as noted, they did not engage in any decept ion or any deceptive practices.

Therefore , the motions seeking to dismiss t he claims based upon Judiciary Law §487 are hereby granted . “

Equitable estoppel is (of course) an equitable defense to the statute of limitations.  It is successfully invoked in the legal malpractice field when the target attorney says, for example, “don’t worry about that pesky statute of limitations, we’ll keep talking about settlement for a while.”   What happens when plaintiff seeks to apply it to a situation in which the failure to start a case is intimately bound up with the malpractice.

Schrull v Weis  2018 NY Slip Op 07769  Decided on November 14, 2018  Appellate Division, Second Department, which we discussed yesterday for a different proposition, speaks about the relationship between equitable estoppel and legal malpractice.

“On July 23, 2008, the plaintiff allegedly was hired to perform carpentry work at a home. The plaintiff alleged that he sustained injuries to his left hand while using a defective table saw provided by the nonparty homeowner. In September 2008, the plaintiff allegedly consulted with the defendant Robert A. Weis, who practiced law at the defendant Law Firm of William G. Sayegh, P.C. (hereinafter the defendant law firm), concerning the plaintiff’s legal rights with respect to the accident. On September 16, 2008, the plaintiff executed a retainer agreement, retaining the defendant law firm “to prosecute and/or adjust a claim for serious personal injuries sustained by [the plaintiff] . . . arising from the negligence” of the manufacturer of the table saw, the homeowner, or anyone else responsible (hereinafter the personal injury claim).

On August 7, 2015, the plaintiff commenced this action against Weis, individually and as an associate of the defendant law firm, and the defendant law firm, asserting, inter alia, a cause of action alleging legal malpractice. The complaint alleged that after the plaintiff executed the retainer agreement, Weis informed the plaintiff that the defendants were going to commence a personal injury and products liability action against the owner of the table saw, the manufacturer of the table saw, and ” everyone that touched the table saw'” until it was sold to the homeowner; the [*2]personal injury claim was ” worth millions of dollars'”; and it “would take up to seven (7) years to resolve” the personal injury claim. The complaint further alleged that from approximately September 2008 to late 2008, the plaintiff contacted Weis approximately every two weeks to inquire about the status of the personal injury claim. Weis allegedly advised the plaintiff to ” put the case on the back burner as it was going to take a long time to resolve,'” and that Weis ” had the plaintiff’s contact information,'” and ” if he needed the plaintiff, he would contact him.'” The complaint also alleged that between approximately late 2008 and July 2014, the plaintiff called the defendants’ law office every six to eight months to check on the status of the personal injury claim and spoke to a secretary each time. The complaint alleged that on July 29, 2014, the plaintiff went to the defendants’ office and asked Weis “when his court date was” because “it was getting close” to the seven-year “anniversary of the accident.” Weis allegedly told the plaintiff that he had ” no case,'” and that Weis thought the plaintiff had ” disappeared.'”

“Here, the defendants satisfied their initial burden by demonstrating that the plaintiff’s legal malpractice cause of action accrued on July 23, 2011, when the statute of limitations on the personal injury claim expired, which was more than three years before the commencement of this action (see Shumsky v Eisenstein, 96 NY2d 164, 166; Baker v Levitin, 211 AD2d 507, 507). In opposition, however, the plaintiff raised a question of fact as to whether the continuous representation doctrine tolled the running of the statute of limitations until July 29, 2014, when Weis [*3]allegedly informed the plaintiff that he did not have a case. Upon entering into the retainer agreement, the plaintiff and the defendants reasonably intended that their professional relationship of trust and confidence, focused upon the personal injury claim, would continue. The complaint adequately alleged that the plaintiff was “left with the reasonable impression” that the defendants were, “in fact, actively addressing [his] legal needs” until that date (Shumsky v Eisenstein, 96 NY2d at 169; see Lytell v Lorusso, 74 AD3d 905, 907). The allegations in the complaint failed to reflect, as a matter of law, that the plaintiff knew or should have known that the defendants had withdrawn from representation on the personal injury claim more than three years before the legal malpractice action was commenced (cf. Shumsky v Eisenstein, 96 NY2d at 171; Muller v Sturman, 79 AD2d 482, 486). Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was to dismiss the legal malpractice cause of action as time-barred.

We agree with the Supreme Court’s determination to deny the plaintiff’s cross motion to permanently estop the defendants from raising the statute of limitations as a defense. The plaintiff’s argument that the doctrine of equitable estoppel should be invoked primarily relied upon allegations in the complaint regarding the defendants’ statements and conduct that formed the basis of the legal malpractice cause of action. In order for the doctrine of equitable estoppel to apply, “a plaintiff may not rely on the same act that forms the basis for the claim—the later fraudulent misrepresentation must be for the purpose of concealing the former tort” (Ross v Louise Wise Servs., Inc., 8 NY3d 478, 491; see Zumpano v Queen, 6 NY3d 666, 674; Benjamin v Allstate Ins. Co., 127 AD3d 1120, 1121; Brooklyn Historic Ry. Assn. v City of New York, 126 AD3d 837, 839). Further, even accepting the remaining allegations in the complaint as true, the plaintiff failed to adequately allege that the defendants engaged in an act of deception, fraud, or misrepresentation after the statute of limitations on the personal injury claim had expired (see Putter v North Shore Univ. Hosp., 7 NY3d 548, 552-553).”

Personal injury law firms face the economic facts of personal injury litigation, including the necessity of having a full shelf of cases to pursue.  PI litigation takes time and what often happens is that the squeaky wheel case keeps the lawyer from working the less prominent case.  Statutes of limitation keep on running along, however, and lots of legal malpractice litigation ensues.  Schrull v Weis  2018 NY Slip Op 07769  Decided on November 14, 2018  Appellate Division, Second Department discusses how the S/L for legal malpractice in a non-commenced personal injury case is calculated.

“On July 23, 2008, the plaintiff allegedly was hired to perform carpentry work at a home. The plaintiff alleged that he sustained injuries to his left hand while using a defective table saw provided by the nonparty homeowner. In September 2008, the plaintiff allegedly consulted with the defendant Robert A. Weis, who practiced law at the defendant Law Firm of William G. Sayegh, P.C. (hereinafter the defendant law firm), concerning the plaintiff’s legal rights with respect to the accident. On September 16, 2008, the plaintiff executed a retainer agreement, retaining the defendant law firm “to prosecute and/or adjust a claim for serious personal injuries sustained by [the plaintiff] . . . arising from the negligence” of the manufacturer of the table saw, the homeowner, or anyone else responsible (hereinafter the personal injury claim).

On August 7, 2015, the plaintiff commenced this action against Weis, individually and as an associate of the defendant law firm, and the defendant law firm, asserting, inter alia, a cause of action alleging legal malpractice. The complaint alleged that after the plaintiff executed the retainer agreement, Weis informed the plaintiff that the defendants were going to commence a personal injury and products liability action against the owner of the table saw, the manufacturer of the table saw, and ” everyone that touched the table saw'” until it was sold to the homeowner; the [*2]personal injury claim was ” worth millions of dollars'”; and it “would take up to seven (7) years to resolve” the personal injury claim. The complaint further alleged that from approximately September 2008 to late 2008, the plaintiff contacted Weis approximately every two weeks to inquire about the status of the personal injury claim. Weis allegedly advised the plaintiff to ” put the case on the back burner as it was going to take a long time to resolve,'” and that Weis ” had the plaintiff’s contact information,'” and ” if he needed the plaintiff, he would contact him.'” The complaint also alleged that between approximately late 2008 and July 2014, the plaintiff called the defendants’ law office every six to eight months to check on the status of the personal injury claim and spoke to a secretary each time. The complaint alleged that on July 29, 2014, the plaintiff went to the defendants’ office and asked Weis “when his court date was” because “it was getting close” to the seven-year “anniversary of the accident.” Weis allegedly told the plaintiff that he had ” no case,'” and that Weis thought the plaintiff had ” disappeared.'”

“Here, the defendants satisfied their initial burden by demonstrating that the plaintiff’s legal malpractice cause of action accrued on July 23, 2011, when the statute of limitations on the personal injury claim expired, which was more than three years before the commencement of this action (see Shumsky v Eisenstein, 96 NY2d 164, 166; Baker v Levitin, 211 AD2d 507, 507). In opposition, however, the plaintiff raised a question of fact as to whether the continuous representation doctrine tolled the running of the statute of limitations until July 29, 2014, when Weis [*3]allegedly informed the plaintiff that he did not have a case. Upon entering into the retainer agreement, the plaintiff and the defendants reasonably intended that their professional relationship of trust and confidence, focused upon the personal injury claim, would continue. The complaint adequately alleged that the plaintiff was “left with the reasonable impression” that the defendants were, “in fact, actively addressing [his] legal needs” until that date (Shumsky v Eisenstein, 96 NY2d at 169; see Lytell v Lorusso, 74 AD3d 905, 907). The allegations in the complaint failed to reflect, as a matter of law, that the plaintiff knew or should have known that the defendants had withdrawn from representation on the personal injury claim more than three years before the legal malpractice action was commenced (cf. Shumsky v Eisenstein, 96 NY2d at 171; Muller v Sturman, 79 AD2d 482, 486). Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was to dismiss the legal malpractice cause of action as time-barred.”