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Continuing Representation Doctrine (Tolling the Statute of Limitations) Explained

The Fourth Department reversed Supreme Court finding that the legal malpractice actions should not have been dismissed as time-barred because there were questions of fact whether the continuing representation doctrine tolled the statute of limitations.  The plaintiff Town alleged that defendant lawyers did not advise the Town of the proper procedure for appointing a hearing officer, which resulted in the annulment of a proceeding terminating a Town employee.  The question was whether the attorneys’ subsequent involvement in attempting to rectify the mistake constituted continuing representation such that the three-year statute was tolled:

Here, while there were three separate and distinct retainer agreements, we conclude that there are triable issues of fact whether defendants were retained for separate and distinct legal proceedings or, rather, “ongoing and developing phases of the [same] litigation” … . We cannot say as a matter of law that all of defendants’ acts “were not interrelated so that representation on [the second Section 75 hearing and the subsequent CPLR article 78 proceeding were] not part of a continuing, interconnected representation” to perform the specific task of terminating a Town employee … . Inasmuch as “[a] question of fact exists on this issue, . . . summary judgment is inappropriate” … .

We further conclude that there are triable issues of fact whether the gaps in the legal services that defendants performed for the Town were “merely . . . period[s] absent expectations, rather than . . . period[s] when representation formally ended” … . Here … the Town “immediately return[ed] to [defendants] . . . once an issue arising from [the alleged] malpractice [was] detected” … .

Although defendants correctly contend that the continuous representation doctrine requires that there be ” continuing trust and confidence in the relationship between the parties’ ” … , there are triable issues of fact whether the Town ever lost such trust and confidence in defendants. Town of Amherst v Weiss, 2014 NY Slip Op 06411, 4th Dept 9-26-14

 

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