Continuous Representation II: Fixing the End of the Representation
Farage v Ehrenberg, ___ AD3d ___,
996 NYS2d 646, 2014 NY Slip Op 07977 [2d Dept., 2014]
This is the second in a three-part series concerning the continuous representation toll in legal malpractice cases. The issue here was where to fix the end of the representation, and hence the end of the toll and the commencement of the limitations period. The precise question was whether the representation necessarily extended until the date a Change of Attorney form was filed, or whether it had ended at some earlier date. The Court held that the determination was fact-specific, but that an earlier date could indeed be established, and an earlier date had in fact had been established here. The action was therefore dismissed as time-barred.
The representation in question concerned two automobile negligence claims prosecuted by the defendant on behalf of the plaintiff: one stemming from an accident in 2002, the other from an accident in 2005. The relationship, as the Appellate Division notes, was “rocky” from the start. In November of 2006, while the defendant’s motion for leave to withdraw was pending, the action relating to the 2002 accident was settled in open court in the New York City Civil Court for $100,000, with the defendant consenting to a reduction of his contingent fee and the motion for leave to withdraw itself withdrawn. Plaintiff, however, refused to execute the general release, claiming fraud and mistake.
After attempts to meet with the plaintiff were unsuccessful, the defendant again moved for leave to withdraw, on May 21, 2007. Plaintiff by this time had engaged new counsel to get the stipulation of settlement vacated, who advised the defendant in writing that defendant was regarded as a “discharged attorney,” and that he was not authorized to do anything to enforce the stipulation.
New counsel moved to vacate the stipulation, which was denied after a hearing. Meanwhile, a Consent to Change Attorney with regard to the 2002 accident suit was signed by plaintiff, defendant, and incoming counsel, dated April 11, 2008. On May 16, 2008, the defendant filed a closing statement with the Office of Court Administration.
Despite all of this, in 2005 the plaintiff had also retained the defendant regarding the 2005 accident. The relationship with regard to this claim was apparently no smoother, as by January 2007 the defendant wrote to the plaintiff’s physical therapist, stating that he had been asked to cease work and directing the therapist to forward all bills directly to the plaintiff’s insurance carrier. In July, 2007, on the other hand, the defendant attempted to negotiate a settlement of the claim regarding the 2005 accident. By March 13, 2008, the plaintiff took possession of the defendant’s file regarding the 2005 accident, signing a receipt witnessed by incoming counsel. No litigation regarding the 2005 accident had yet been commenced.
This lawsuit for legal malpractice and related claims was commenced on March 31, 2011. The defendant answered, and moved for summary judgment on the basis of limitations. Defendant’s position was that the three-year limitations period as to all claims relating to the 2002 accident began running not later than November, 2006, with the in-court settlement. Therefore, the action commenced in 2011 was untimely. He argued for the same commencement date as to the claims regarding the 2005 accident claim.
Plaintiff argued for the applicability of the continuous representation doctrine As to the claims relating to the 2002 accident, plaintiff argued that the continuous representation extended up until the execution of the Consent to Change Attorney, in April 2008. This date would have rendered those claims timely. With regard to the 2005 accident, the plaintiff argued that the continuous representation continued until the defendant filed the closing statement with OCA, on May 16, 2008. This also would have been within three years of the commencement of the action.
Supreme Court granted the defendant’s motion for summary judgment and dismissed the action on limitations grounds. The Appellate Division affirmed.
Legal malpractice claims are governed by the three-year limitations period, unless tolled by the continuous representation doctrine (CPLR 214). That is, the limitations period is tolled until the continuing representation of the client is concluded. The court noted that the representation may be ended in different ways. The client may simply discharge the attorney, with or without cause. A second way is for both attorney and client to execute a Consent to Change Attorney, which must be filed with the court. (CPLR 321 [b]) A third is for the attorney to move for leave to withdraw.
The court noted that while the affirmative discharge of the attorney by the client is effective immediately, the attorney continues as attorney of record until the withdrawal, substitution or discharge is made as of record pursuant to CPLR 321.
The complaint itself admitted that the defendant no longer represented the plaintiff regarding the 2002 accident as of the date of the in-court settlement, November 16, 2006. The letter to the physical therapist (January 15, 2007), and the letter from incoming counsel (November 19, 2007) also establish the termination of the continuing relationship. All three dates are more than three years prior to the commencement of the action.
As to the claims relating to the 2005 accident, the plaintiff’s signed receipt of the defendant’s file, countersigned by incoming counsel, establishes the end of the attorney-client relationship. There was no proof of any ongoing relationship beyond that.
The plaintiff relied on the signing of the Consent to Change Attorney, which did not occur until April 11, 2008. While that act could mark the end date of the attorney-client relationship in the absence of proof establishing an earlier date, it is not necessarily controlling where such proof does exist. Here, the record is clear that the plaintiff discharged the defendant long before the Consent to Change Attorney was executed as a matter of form. Similarly, the filing of the OCA closing statement on May 16, 2008, was a ministerial act which does not evidence a continuing attorney-client relationship until that date.
Finally, the plaintiff alleged a cause of action for deceit and collusion under Judiciary Law § 487. The Appellate Division recognized the determination of the Court of Appeals in Melcher v Greenberg Traurig LLP, that the limitations period on such a claim is ordinarily the six-year catch-all period of CPLR 213 (1). However, Melcher did not involve a legal malpractice claim. In this case, which does involve a legal malpractice claim, CPLR 214 (6) controls, making the applicable period three years where the facts alleged are the same as in the legal malpractice claim.
The order dismissing the complaint as time-barred under CPLR 214 (6) was therefore affirmed.
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