SCHWENGER v. Brian Mittman et al., Defendants–Respondents. (2021)

Order, Supreme Court, New York County (Robert D. Kalish, J.), entered September 4, 2019, which granted the motion of defendants Brian Mittman and Markhoff & Mittman P.C. to dismiss the action as against them based on the statute of limitations, unanimously reversed, on the law, without costs, and the motion denied.

Where, as here, defendants were retained in writing to represent plaintiff in all proceedings before the Workers' Compensation Board related to his claim, plaintiff made a sufficient showing of a continuing relationship with regard to that proceeding to support his contention of continuous representation (Shumsky v. Eisenstein, 96 N.Y.2d 164, 168, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001]).  Defendants' statement in an email that they would not pursue an appeal to the Third Department after having lost before the Workers' Compensation appellate panel on the issue of whether plaintiff was an employee, did not “unequivocally” terminate the representation in the workers' compensation matter, which remained pending following the administrative review (Riley v. Segan, Nemerov & Singer, P.C., 82 A.D.3d 572, 572, 918 N.Y.S.2d 488 [1st Dept. 2011]).  This is particularly true in light of the terms of the retainer agreement.