Harris v. Wachtel & Missry, LLP and Omid Zareh, P.C., Index No. 605895-2015 (Sup.Ct. Nassau Cty. March 22, 2016)

A Nassau County court has dismissed legal malpractice claims where evidence showed the attorney-client relationship had ended more than three years before commencement of the action.

Plaintiff sought damages upon multiple theories of malpractice arising out of the dissolution of a law firm of which plaintiff had been a partner. Several law firms represented plaintiff at different points during the dissolution proceedings; however, plaintiff claimed that the defendant’s representation continued into the three year period prior to commencement of the action. Defendant, and ultimately the Court, disagreed.

The Court rejected the argument that the statute of limitations was tolled under the “continuous representation doctrine”. The Court explained, “The three-year limitations period applicable to causes of action to recover damages for legal malpractice may be tolled by the continuous representation doctrine where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.

For the doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney. One of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties. … What constitutes a loss of client confidence is fact specific, varying from case to case, but may be demonstrated by relevant documentary evidence involving the parties, or by the client’s actions.”

The record here contained ample evidence, including a retainer agreement, timesheets, billing records, and emails, all showing that representation had in fact ended more than three years before the action was commenced. In addition, the Court found judicial admissions by Plaintiff – statements and allegations within pleadings and affidavits submitted to court – that were consistent with the conclusion that defendant had withdrawn from its representation more than three years before the filing of the malpractice complaint.

Abrams Gorelick partner Barry Jacobs represented the defendant, and he briefed and argued the defendant’s motion to dismiss.