David Shumsky et al.,
Appellants,
v.
Paul Eisenstein,
Respondent.
2001 NY Int. 51
In April 1993, plaintiffs David Shumsky and Marjorie
Scheiber retained defendant Paul Eisenstein, an attorney, for the
specific purpose of commencing an action against Charles
Fleischer, a home inspector, for breach of contract. Defendant
did not contact plaintiffs to keep them informed and, in fact,
In response to a formal disciplinary grievance plaintiffs filed against him in September of 1997, defendant admitted that he had failed to commence the action against Fleischer before the Statute of Limitations had expired in March of 1994 and stated that, after two years, when his clients finally contacted him, he was "too embarrassed to discuss the matter and put it off."[1] Thereafter, on December 5, 1997, plaintiffs commenced this legal malpractice action against defendant, sounding in both contract and tort. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiffs' action was barred by the three-year Statute of Limitations, since the malpractice occurred in March 1994 when defendant failed to commence the action against Fleischer. Supreme Court denied defendant's motion, concluding that the continuous representation doctrine tolled the limitations period at least until defendant finally revealed, in 1997, that he had failed to timely commence plaintiffs' action against the home inspector.
The Appellate Division reversed, granted defendant's
motion and dismissed the complaint. The court held that, on
these facts, the doctrine of continuous representation was not
An action to recover damages for legal malpractice accrues when the malpractice is committed (see, Glamm v Allen, , 57 NY2d 87, 93). "What is important is when the malpractice was committed, not when the client discovered it" (id., at 95). Here, plaintiffs' legal malpractice cause of action against defendant accrued in March of 1994, when the Statute of Limitations had expired on the underlying breach of contract action plaintiffs retained defendant to commence.
Effective September 4, 1996, CPLR 214 (6) was amended,
shortening the limitations period in nonmedical malpractice
claims from six to three years to the extent that the claims
sought breach-of-contract damages, and directing that a uniform
limitations period applied "regardless of whether the underlying
theory is based in contract or tort" (CPLR 214 [6], as amended by
L 1996, ch 623). At the time plaintiffs' legal malpractice
action against defendant accrued, however, legal malpractice
actions, when based upon a contract theory, were governed by the
In Brothers v Florence and its companion cases (95 2
290), this Court upheld the application of the 1996 amendment to
CPLR 214 (6) to previously accrued claims by affording litigants a
"reasonable opportunity" after the amendment's effective date to
commence an otherwise time-barred action. The Court determined
that, for those cases not immediately time-barred as of the 1996
amendment's effective date, litigants would have "no less than
one year from the amendment's effective date to bring suit"
(Brothers [Early v Rossback],
Like the action at issue in Early v Rossback,
plaintiffs' action here was not immediately time-barred upon the
1996 amendment's effective date. Instead, there were still six
months remaining in which to bring suit against defendant for his
failure to commence plaintiffs' breach of contract claim against
Fleischer. Thus, under the bright-line rule articulated by this
Court in Brothers v Florence and its companion cases, the
limitations period did not expire until September 4, 1997, one
The continuous representation doctrine, like the continuous treatment rule, its counterpart with respect to medical malpractice claims, "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 the manner in which the services are rendered" (Greene v Greene, , 56 NY2d 86, 94). The doctrine also appreciates the client's dilemma if required to sue the attorney while the latter's representation on the matter at issue is ongoing:
"Neither is a person expected to jeopardize his pending case or his relationship with the attorney handling that case during the period that the attorney continues to represent the person. Since it is impossible to envision a situation where commencing a malpractice suit would not affect the professional relationship, the rule of continuous representation tolls the running of the Statute of Limitations on the malpractice claim until the ongoing representation is completed" (Glamm v Allen,
supra , 57 NY2d, at 94).
Application of the continuous representation or
treatment doctrine is nonetheless generally limited to the course
While it is true that this Court and others have held
that a professional's failure to take action or provide services
necessary to protect a client's or patient's interests does not,
standing alone, constitute representation or treatment for
purposes of tolling the Statute of Limitations (see, e.g., Young
v New York City Health & Hosps. Corp.,
Similarly, Young v New York City Health & Hosps. Corp.
(
This case is distinguishable from both Ashmead and
Young. In those cases, the plaintiffs were unaware of any need
for further legal services or medical treatment, and there was no
mutual understanding with the professional that further services
were needed in connection with the specific subject matter out of
which the malpractice arose. By contrast, plaintiffs here were
acutely aware of such need for further representation on the
specific subject matter underlying the malpractice claim and
there was a mutual understanding to that effect. Moreover, the
In McDermott v Torre (
By a parity of reasoning, "continuous representation" in the context of a legal malpractice action does not automatically come to an end where, as here, pursuant to a retainer agreement, an attorney and client both explicitly anticipate continued representation. Plaintiffs retained defendant for the sole purpose of pursuing their specific contract claim. Thus, upon signing the retainer agreement, plaintiffs and the defendant reasonably intended that their professional relationship of trust and confidence -- focused entirely upon the very matter in which the alleged malpractice was committed -- would continue. Indeed, even in his letter to the Grievance Committee, defendant acknowledged that his services had been retained specifically to "investigate, research and prosecute their claim against Fleischer" -- the equivalent of a "course of treatment" in the legal malpractice context. Moreover, like the "timely return visit instigated by the patient" in McDermott, plaintiffs' attempt to contact defendant on at least one occasion, in October of 1996, inquiring about the status of their case and requesting a letter in response, confirms this understanding and supports application of the doctrine here. Accordingly, this case appears to fall well within that realm of continuous professional services already recognized by this Court in the medical malpractice context.
Of course, even when further representation concerning
the specific matter in which the attorney allegedly committed the
Accordingly, the order of the Appellate Division should be reversed, with costs, and defendant's motion for summary judgment denied.
1 In September 1998, the Grievance Committee for the Tenth Judicial District concluded that defendant's actions constituted a breach of the Code of Professional Responsibility and issued a Letter of Admonition to the attorney.
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