KANTER v. PIERI (2004)

Plaintiff commenced this legal malpractice action against defendant after defendant represented plaintiff in a lawsuit that resulted in substantial judgments entered against plaintiff that were previously affirmed by this Court (Smith v. Kanter, 273 A.D.2d 793, 795, 709 N.Y.S.2d 760, lv. denied 95 N.Y.2d 764, 716 N.Y.S.2d 39, 739 N.E.2d 295).   Supreme Court granted defendant's motion to dismiss the complaint on the ground that the action was barred by the applicable statute of limitations.   Following entry of that order, plaintiff moved for leave to reargue. The court granted plaintiff's motion and adhered to its prior determination.   Plaintiff appealed from the court's initial order and failed to appeal from the subsequent order granting leave to reargue, which superseded the initial order (see Loafin' Tree Rest. v. Pardi [Appeal No. 1], 162 A.D.2d 985, 559 N.Y.S.2d 154).   We exercise our discretion to treat the notice of appeal as one taken from the order granting leave to reargue (see CPLR 5520[c];  Pol-Tek Indus. v. Panzarella, 227 A.D.2d 992, 643 N.Y.S.2d 289), and now modify the order by denying the motion to dismiss and reinstating the complaint.

 A cause of action for legal malpractice accrues when the malpractice is committed (see Glamm v. Allen, 57 N.Y.2d 87, 93, 95, 453 N.Y.S.2d 674, 439 N.E.2d 390), and must be interposed within three years thereafter (see CPLR 214[6];  Aaron v. Roemer, Wallens & Mineaux, 272 A.D.2d 752, 754, 707 N.Y.S.2d 711, lv. dismissed 96 N.Y.2d 730, 722 N.Y.S.2d 796, 745 N.E.2d 1018).   We agree with plaintiff that defendant failed to meet his initial burden of establishing that this action is untimely (see Government Dev. Bank for Puerto Rico v. Ernst & Young, 219 A.D.2d 467, 631 N.Y.S.2d 147;  cf. Gravel v. Cicola, 297 A.D.2d 620, 620-621, 747 N.Y.S.2d 33).   In support of his motion, defendant contended that this action was commenced on April 11, 2002, and the trial on the underlying action concluded on March 8, 1999.   Nevertheless, in addition to alleging that defendant's conduct during that trial constituted malpractice, plaintiff also alleges in the complaint that defendant's conduct in not opposing the request for attorney's fees made by the plaintiffs in the underlying action constituted malpractice.   The record in the prior appeals before us establishes that a judgment entered on April 12, 1999 awarded attorney's fees to the plaintiffs in the underlying action.   In support of his motion, defendant failed to submit any evidence showing when the request for attorney's fees was made, or when the time to oppose that request expired.   Defendant thus failed to establish that the acts constituting malpractice as alleged by plaintiff occurred more than three years before the commencement of this action.

 In any event, even assuming, arguendo, that defendant met his initial burden, we conclude that plaintiff established that the continuous representation doctrine applies.   At the outset, we note that we have not considered any evidence submitted by the parties at oral argument that was outside the stipulated record on appeal.   The continuous representation doctrine tolls the statute of limitations period until the representation is completed (see Glamm, 57 N.Y.2d at 93-94, 453 N.Y.S.2d 674, 439 N.E.2d 390).   For the doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney” (Luk Lamellen U. Kupplungbau GmbH v. Lerner, 166 A.D.2d 505, 506, 560 N.Y.S.2d 787;  see Marro v. Handwerker, Marchelos & Gayner, 1 A.D.3d 488, 767 N.Y.S.2d 279;  Leffler v. Mills, 285 A.D.2d 774, 775, 729 N.Y.S.2d 196).   Critically, it must be established that there is “continuing trust and confidence in the relationship between the parties” (Luk Lamellen U. Kupplungbau GmbH, 166 A.D.2d at 507, 560 N.Y.S.2d 787;  see Piliero v. Adler & Stavros, 282 A.D.2d 511, 512, 723 N.Y.S.2d 91;  Aaron, 272 A.D.2d at 755, 707 N.Y.S.2d 711).   Defendant averred that his representation of plaintiff ended on March 8, 1999, or at the latest on March 26, 1999, when plaintiff retained different counsel to represent him on the appeal.   Plaintiff submitted evidence, however, establishing that, although he retained different appellate counsel, both he and his new appellate counsel understood that defendant would be preparing, filing, and serving the notice of appeal in the underlying action, and that he trusted that defendant would do so.   There was thus continuing trust and confidence between plaintiff and defendant at least until defendant prepared, filed, and served that notice of appeal on behalf of plaintiff.   That notice of appeal was filed by defendant on April 21, 1999, which would make this action, commenced within three years of that date, timely.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying defendant's motion and reinstating the complaint and as modified the order is affirmed without costs.

MEMORANDUM: