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Sometime in August of 2002, plaintiff hired a law firm to represent her


Sometime in August of 2002, plaintiff hired a law firm to represent her in a medical malpractice (personal injury) and wrongful death action concerning the death of her husband. According to the law firm hired, a lawyer, who was then an of counsel lawyer of the firm, was assigned to handle plaintiff’s case.

In early 2003, the underlying action for medical malpractice was commenced against defendants: the Medical Center, the Westchester County Health Care Corporation, and certain doctors.

Thereafter, plaintiff’s lawyer severed his relationship with the law firm hired. Plaintiff then opted to continue to be represented by the lawyer and discharged the law firm. However, sometime after, the lawyer also severed his relationship with the plaintiff. Thus, plaintiff’s son continued to handle the case which was later continued by another law firm.

On 14 December 2007, plaintiff, as executrix of the estate of her deceased husband, and individually, commenced the instant action against defendants, the first law firm hired (law-firm-one) and the law firm of the, of counsel, lawyer (law-firm-two), alleging legal malpractice.

Plaintiff alleges that defendants committed legal malpractice by failing to name all potentially liable parties in her underlying medical malpractice action; that, although she ultimately prevailed in her action, the award in the underlying action would have been significantly larger, including substantial economic damages that were not awarded by the jury because the proper parties, who treated the decedent well before the treatment provided by the named defendants in the underlying action, were not named. Allegedly, the underlying complaint represented that counsel was in possession of the relevant medical records and consulted with one or more knowledgeable physicians prior to commencing the foregoing action for medical malpractice and wrongful death. According to plaintiff, it was argued throughout the trial of the underlying action that when decedent first presented to the named defendants, he was already extremely ill and in heart failure. Plaintiff verily believes that the reason decedent was so sick was a direct consequence of the medical malpractice of two doctors who were not included in the medical malpractice action; that, had they been named as defendants within the relevant statute of limitations, the underlying cause of decedent’s condition would have been before the court and the jury in the underlying action, with the likelihood of an increase in damages awarded to plaintiff. On or about 17 December 2004, plaintiff alleges that defendants’ legal services were terminated. By the time she was able to retain another law firm, the statute of limitations had run on the medical malpractice claims that she would have had against the aforesaid two additional physicians who treated her husband, and their respective practices. Plaintiff alleges that defendants acted with negligence, breached their fiduciary duties to plaintiff and breached their contract with plaintiff by virtue of the aforementioned failure to name all responsible parties in the medical malpractice action.

Law-firm-two moves pursuant to CPLR 3211 (a) (1), (5) and (7), and law-firm-one moves for summary judgment pursuant to CPLR 3212 to dismiss plaintiff’s complaint.

The Issues:

Is law-firm-one liable? Is law-firm-two liable?

The Ruling:

As a rule, in a motion to dismiss, a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the cause of action may not be maintained because of the statute of limitations.

Whereas, in a summary judgment, it is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the cause of action has no merit, sufficient to warrant the court as a matter of law to direct judgment in his or her favor. This standard requires that the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient evidentiary proof in admissible form to demonstrate the absence of any material issues of fact. Thus, the motion must be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions. Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact. Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden then shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or to tender an acceptable excuse for his or her failure to do so. Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist. The opponent must assemble and lay bare its affirmative proof to demonstrate that genuine triable issues of fact exist and the issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief.

On another note, the statute of limitations for a legal malpractice action is three years.

It must be noted that the instant action was commenced on 14 December 2007, that is, when the complaint was filed. The alleged malpractice herein is the law-firm-two’s failure to name additional parties as defendants in the underlying action. Thus, defendant, as the movant, must establish that any alleged malpractice did not occur during the period of the law-firm-two’s representation of the plaintiff. Accordingly, any claim for legal malpractice which accrued prior to 14 December 2004 would be barred.

Here, the relationship between the New York City plaintiff and law-firm-two had already come to an end for purposes of the toll even though the client had not yet retained a new attorney as of November 2004, and even though law-firm-two signed the consent to change attorney on 14 December 2004. The failure of law-firm-two to seek leave to withdraw as counsel, in and of itself, is not a basis to apply the continuous representation doctrine where plaintiff acknowledges receipt of the law-firm-two’s notice of termination of their relationship, where plaintiff considered law-firm-two to have abandoned her action, and where plaintiff began seeking new counsel, all in November 2004. Further, any failure of law-firm-two to prove when the file was actually physically received by plaintiff is likewise inconsequential, given that plaintiff was clearly on notice that law-firm-two was no longer representing her after November 2004. In any event, not only does plaintiff acknowledge receipt of the file, she does not dispute receipt of the letter sent on 8 December 2004 on law-firm-two’s letterhead, indicating law-firm-two’s intent to return the file to her possession. There is no indication that plaintiff believed that law-firm-two would continue to represent her interests until she physically received her file. Thus, the action against law-firm-two is untimely and is dismissed pursuant to CPLR 3211 (a) (5) as against said defendants. The court does not reach the merits of defendants’ motion to dismiss based on the alleged failure to state a cause of action.

As to law-firm-one, the instant legal malpractice cause of action is also time-barred, since the plaintiff commenced the action more than three years after her attorney-client relationship with law-firm-one has ended. It is undisputed that law-firm-one was retained in 2002, and that in August 2004, plaintiff expressly discharged law-firm-one as her counsel. It is uncontested that plaintiff informed law-firm-one that its legal services were no longer needed. Indeed, plaintiff specifically requested, in writing, that law-firm-one cease all legal services on her behalf, and that it transfer her file to law-firm-two. Evidently, plaintiff terminated her relationship with law-firm-one, and expressly indicated her desire to depend on the legal services of another firm, to wit: law-firm-two. Plaintiff’s affidavit bears no indication that she communicated with or intended for law-firm-one to pursue her claim, or indicates that law-firm-one gave her any reason to believe that it was continuing to represent her in any manner subsequent to her discharge of law-firm-one. There is simply no indicia in the record that either law-firm-one or plaintiff were under any understanding that law-firm-one would continue to represent her interests in her underlying action subsequent to her discharge letter of August 2004. Thus, plaintiff’s legal malpractice claim accrued no later than August 2004, when she discharged them as her attorney. Moreover, there is not any indication in the record that law-firm-one performed any legal services on plaintiff’s behalf, or continued to represent plaintiff in the underlying action in any manner beyond the date that plaintiff discharged them. It is uncontested that after three months, in November 2004, law-firm-two informed plaintiff that he no longer wished to continue handling plaintiff’s case. Law-firm-two’s letter indicates that law-firm-two, and not law-firm-one, had been working on plaintiff’s case. Therefore, it cannot be said that the statute of limitations was tolled subsequent to plaintiff’s termination of law-firm-one in August 2004. Plaintiff’s reliance on the fact that the notice of substitution of counsel (or consent to change attorney) was finally executed by plaintiff on 17 December 2004, and substituted plaintiff’s son for law-firm-one, as opposed to law-firm-two, as her counsel, is misplaced. The purpose of CPLR 321 (b) is to afford protection to adverse parties, by eliminating disputes and uncertainty as to whether and when the authority of an attorney representing an opponent terminated, and it has generally been construed to establish the authority of discharged counsel as to adverse parties and not as to the very party who discharged the attorney. The fact that the notice of substitution of counsel between law-firm-one and plaintiff’s son was not signed until 17 December 2004 does not, in and of itself, serve as a basis to toll the statute of limitations under the continuous representation doctrine, since it had been made clear, by plaintiff’s own letter to law-firm-one, that law-firm-two replaced law-firm-one as counsel in August 2004. Thus, having failed to raise a triable issue of fact to overcome law-firm-one’s showing that the action is time-barred as a matter of law, plaintiff’s action is also dismissed as to these defendants.

In sum, the branch of the motion by defendant law-firm-two pursuant to CPLR 3211 (a) (1) and (7) dismissing plaintiff’s complaint is denied; nonetheless, the branch of the motion by defendants law-firm-two pursuant to CPLR 3211 (a) (5) is granted, and the complaint as against said defendants is dismissed; and the motion by defendant law-firm-two pursuant to CPLR 3212 for summary judgment in their favor and against plaintiff is granted, and the complaint against said defendants is dismissed.

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