The Complaint was filed on December 3, 2018 (Dkt. No. 2), and the Amended Complaint was filed on May 8, 2019 (Dkt. No. 8). According to the Amended Complaint,Defendants committed malpractice while representing Esposito in a civil "sexual assault and battery case" that she brought against another lawyer - non-party Allen Isaac - in New York state court in 2008 (the "Isaac case"). (Am. Cmplt. (Dkt. No. 8) ¶ 1) Isaac had represented Esposito in a personal injury automobile accident case that she brought in 2002, and Esposito claims that, during that representation, Isaac had "sexually molested [her] by grabbing her breast inside her bra and her buttocks." (Id. ¶¶ 15, 17) In August 2015, after seven years of litigation, defendants in the Isaac case were granted summary judgment and Esposito's case was dismissed. (Aug. 11, 2015 N.Y.C. Civ. Ct. Order (Dkt. No. 24-5)) In the instant case, Esposito claims that Defendants committed legal malpractice in representing her in the Isaac case.2
On July 11, 2019, Defendant Gary moved to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Gary Br. (Dkt. No. 25)) Defendant Chestnut filed an almost identical motion on December 9, 2019. (Chestnut Br. (Dkt. No. 41))
On December 10, 2019, this Court referred Defendants' motions to Magistrate Judge Ona Wang for a Report and Recommendation ("R&R"). (Order (Dkt. No. 43)) On April 20, 2020, Judge Wang issued an R&R in which she concluded - as an initial matter - that Esposito's legal malpractice claim was timely. (R&R (Dkt. No. 49) at 153 ("[T]he Court cannot find that Plaintiff's claims are time barred at this stage and I do not recommend dismissing Plaintiff's malpractice claims on timeliness grounds.")) Judge Wang recommended, however, that the Amended Complaint be dismissed for failure to state a claim. (Id. at 24) Judge Wang further recommended that Esposito be granted leave to amend. (Id. at 24-25)
Both sides objected to the R&R. In her objections, Esposito argued - contrary to Judge Wang's findings - that the Amended Complaint sufficiently pleads a legal malpractice claim. (Pltf. Obj. (Dkt. No. 50) at 1-2) Defendants maintained that Judge Wang erred by not dismissing the Amended Complaint as time-barred. (Def. Obj. (Dkt. No. 55) at 9-14) Defendants also argued that Esposito should not be granted leave to amend because any amendment would be futile. (Id. at 18)
In a May 16, 2020 order, this Court found Defendants' objections meritorious, and ruled that Esposito's legal malpractice claims4 were untimely:
"New York law provides a three-year statute of limitations for a legal malpractice action that 'begins when the malpractice occurs, not when an individual discovers the malpractice or understands its full consequences.'" Bryant v. Monaghan, No. 15 CIV 8427 PAC HBP, 2018 WL 4932086, at *5 (S.D.N.Y. Aug. 1, 2018), report and recommendation adopted sub nom.Bryant v. Silverman, 2018 WL 4357478 (S.D.N.Y. Sept. 12, 2018) (quoting Hanna v. O'Connell, 14 Civ. 7016 (RJS), 2015 WL 5223188 at *3 (S.D.N.Y. Aug. 12, 2015)). "The statute of limitations 'may be deemed tolled under the theory of continuous representation until the attorney ceases representing the client in the specific matter at issue.'" Id. (quoting Nobile v. Schwartz, 56 F. App'x 525, 526 (2d Cir. 2003)); Shumsky v. Eisenstein, 96 N.Y.2d 164, 166 (2001) ("[I]n the context of a legal malpractice action, the continuous representation doctrine tolls the Statute of Limitations only where the continuing representation pertains specifically to the matter in which the attorney committed the alleged malpractice.").
The continuous representation doctrine "'is premised on the trust relationship between the attorney and the client, and the inequity of barring the client from suing the attorney based on the running of the statute of limitations during the life of that relationship.'" Koch v. Pechota, No. 10 CIV. 9152, 2012 WL 2402577, at *4 (S.D.N.Y. June 26, 2012) (quoting Mason Tenders Dist. Council Pension Fund v. Messera, 958 F. Supp. 869, 888 (S.D.N.Y.1997)). Thus, the "doctrine cannot be used to toll the statute of limitations after the relationship of trust and confidence ends." Bryant, 2018 WL 4932086, at *6 (S.D.N.Y. Aug. 1, 2018) (citing Aseel v. Jonathan E. Kroll & Assoc., PLLC, 106 A.D.3d 1037, 1038 (2d Dep't 2013); Fleyshman v. Suckle & Schlesinger, PLLC, 91 A.D. 3d 591, 592 (2dDep't 2012)); seealsoAnderson v. Greene, No. 14 CIV. 10249 (KPF), 2016 WL 4367960, at *27 (S.D.N.Y. Aug. 10, 2016), aff'd, 774 F. App'x 694 (2d Cir. 2019) ("'[F]or the continuous representation doctrine to apply, a predicate of continuing trust and confidence must exist,' and 'if there is a breakdown in that relationship, the doctrine is not applicable.'") (quoting De Carlo v. Ratner, 204 F. Supp. 2d 630, 636 (S.D.N.Y.), aff'd, 53 F. App'x 161 (2d Cir. 2002)).
Here, Esposito filed the Complaint on December 3, 2018. (Cmplt. (Dkt. No. 1)) Accordingly, for her malpractice claim to be timely, the statute of limitations must be tolled at least through December 3, 2015. Judge Wang found that the continuous representation doctrine might apply through January 7, 2016, given that Defendants were copied on an email . . . to [the] law secretary [of the presiding state court judge] at that time. (R&R (Dkt. No. 49) at 14-15 (citing Pltf. Opp. (Dkt. No. 45) at 5-6)
It is clear from the Amended Complaint, however, that Esposito had lost trust and confidence in Defendants long before December 3, 2015. Esposito pleads that in connection with a 2013 summary judgment motion, Defendants were "not prepared," "failed to submit crucial evidence," and "did not have case law to support their arguments." (Am. Cmplt. (Dkt. No. 8) ¶¶ 49-50) "Over the summer months and continuing into the Fall of 2015," Esposito became "flabbergasted . . . that Gary was trying to completely derail and bury [Plaintiff's] case." (Id. ¶ 51) Esposito alleges that Defendants' "actions and inactions [at this time] . . . clearly . . . make a strong case to charge the Gary team with legal malpractice and outright fraud." (Id.; seealsoid. ¶ 52 ("On September 21, October 8 and October 14, 2015 there was court dates in New York County Court. Ms. Esposito's legal saga and the apparent corruption surrounding it, became further convinced that she has been defrauded and the fraudulent activity involves her attorneys.").
In sum, accepting the allegations of the Amended Complaint as true, Esposito plainly lost trust and confidence in Defendants long before December 3, 2015. Accordingly, the continuous representation doctrine does not apply, and Plaintiff's legal malpractice claims are time-barred. See, e.g., Aseel, 106 A.D.3d at 1038 ("[B]ecause . . . the relationship necessary to invoke the continuous representation doctrine terminated more than three years prior to the commencement of this action, the Supreme Court properly granted that branch of the defendants' motion . . . to dismiss so much of the complaint as alleged legal malpractice against the defendants. . . ."); Serino v. Lipper, 47 A.D.3d 70, 77 (1st Dep't 2007) ("[T]he continuous representation doctrine does not apply here. . . . Accordingly, the malpractice claims . . . should have been dismissed as time-barred.").
Esposito contends, however, that the continuous representation doctrine applies, because "Defendants were still [counsel] of record in the [Isaac] case as of January of 2016." (Pltf. Opp. to Def. Obj. (Dkt. No. 57) at 2; seealso Pltf. Obj. (Dkt. No. 50) at 9 (noting Defendants' "failure to establish when Representationterminated" and "failure to bring forward any Official Court Order from the State of New York Courts which relieved . . . [them of their] professional obligations and duties and on which date")) Esposito lost trust in Defendants before they were relieved as counsel of record, however. Accordingly, the date on which Defendants were formally relieved has no import. See,e.g., O.K. Petroleum Int'l, Ltd. v. Palmieri & Castiglione, LLP, 136 A.D.3d 767, 767-68 (2d Dep't 2016) ("[T]he Supreme Court properly . . . dismiss[ed] the cause of action . . . for legal malpractice as untimely. . . . [P]laintiffs failed to raise a triable issue of fact as to whether the statute of limitations was tolled by the continuous representation doctrine until the formal notice of substitution was executed on June 12, 2009. . . ."); Aaron [v. Roemer, Wallens & Mineaux, LLP, 272 A.D.2d 752, 752 (3d Dep't 2000)] ("[C]ontinuous treatment rule did not persist until formal termination of nominal representation by defendants, but rather ceased with disruption of client's trust and reliance. . . ."); Frenchman v. Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP, 24 Misc. 3d 486, 494 (N.Y. Co. Sup. Ct. 2009) ("Plaintiff's claim that the lack of a formal substitution somehow serves as proof of continuous representation . . . is flawed."); Artese ex rel. Artese v. Pollack, 2 Misc. 3d 1008(A) (N.Y. Sup.
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