File Request Triggered State Of Limitations

A legal malpractice claim was filed too late, according to a decision of the New York Appellate Division for the First Judicial Department

Here, the acts of alleged malpractice are errors in drafting the underlying complaint, failure to include Collision Capital as a plaintiff, and poor representation and advice during a settlement meeting. The complaint in the underlying lawsuit was filed on August 11, 2011. Plaintiffs allege they unsuccessfully asked defendants to add Collision Capital as a plaintiff sometime prior to April 2012. The settlement meeting at issue took place on August 6, 2013. Accordingly, it is submitted that any alleged malpractice here would have occurred, at the latest, on or before August 6, 2013. As the complaint was not filed until March 23, 2017, defendants made a prima facie showing the case was time-barred.

The trial court appropriately determined that plaintiffs failed to show the continuous representation doctrine, which would have tolled the statute of limitations, applied, or that there was an issue of fact with respect thereto (860 Fifth Avenue Corp v Superstructures-Engrs. & Architects, 15 AD3d 213 [1st Dept 2005]).

The court reasonably determined the period of continuous representation ended, and the limitations period began to run, at the latest, on March 6, 2014, when plaintiff Marzario told defendant Millus to turn over PPL’s files. The court reasonably construed this communication as Marzario’s acknowledgment that he no longer had trust or confidence in the attorney-client relationship, and accordingly deemed the relationship, and any toll on the limitations period, terminated as of then (see Farage v Ehrenberg, 124 AD3d 159 [2d Dept 2014], lv denied 25 NY3d 906 [2015]; Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d 1037 [2d Dept 2013]).

(Mike Frisch)