Legal Malpractice

The Non-Existant Discovery Statute of Limitations in Legal Malpractice

By (Andrew Lavoott Bluestone)

How often it happens that plaintiff learns of mistakes his prior counsel made, but only years later.  Years is the operative word here, as the statute of limitations for legal malpractice is 3 years.  So what happens when the attorney lets plaintiff's claim lapse, more than three years goes by, and plaintiff then learns of it?  Plaintiff loses. 

Here, inMorrison Cohen LLP v Parrish ;  2011 NY Slip Op 30354(U);  February 9, 2011; Supreme Court, New York County; Docket Number: 115815/07; Judge: Joan A. Madden the court for a second time denies plaintiff's motion because too much time has passed.

"In support of the instant motion, defendant attempts to address the statute of limitations issue, by alleging that he did not discover the malpractice until after he terminated plaintiff's representation. It is well settled, however, that a cause of action for legal malpractice accrues when the malpractice is committed, and not when it is discovered by the client. &g Shumskv v, Eisenstein, 96 NY2d 164, 16 6 (200 1); Wangoner v. Caruso, 68 AD3d 1 , 6 (lst Dept 2009), aff'd 14 NY3d 874 (2010). Under the doctrine of continuous representation, the statute of limitations is tolled while representation on the same matter in which the malpractice is alleged is ongoing. -See Shumsky v. Eisenstein, D uane Morris LLP v. Astar Hold-. Inc., 61 AD3d 418 ( lst Dept 2009). That doctrine, however, does not save defendant's legal malpractice defense or counterclaim, as it is undisputed that plaintiff rendered no legal services to defendant after March 2004."

Full post as published by New York Attorney Malpractice Blog on February 18, 2011 (boomark / email).