Farage v. Ehrenberg

• Decision Date: 19 November 2014
• Docket Number: 2012-03461, Index No. 7325/11.
• Citation: 124 A.D.3d 159,2014 N.Y. Slip Op. 07977,996 N.Y.S.2d 646
• Parties: Regina FARAGE, appellant, v. Lance EHRENBERG, etc., respondent.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 159

996 N.Y.S.2d 646

2014 N.Y. Slip Op. 07977

Regina FARAGE, appellant

v.Lance EHRENBERG, etc., respondent.

2012-03461, Index No. 7325/11.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 19, 2014.

Andrew Lavoott Bluestone, New York, N.Y., for appellant.

Lance Ehrenberg, New York, N.Y. (Alan D. Handler of counsel), respondent pro se.

PETER B. SKELOS, J.P., MARK C. DILLON, JOSEPH J. MALTESE, and BETSY BARROS, JJ.

Opinion

DILLON, J.

This appeal presents the question of whether the attorney-client relationship, for purposes of measuring the continuing representation toll of the statute of limitations, should run to the filing of the Consent to Change Attorney form or from earlier factual events involving the attorney and the client. We hold that courts must examine the unique circumstances of each case and that where, as here, facts establish a client's discharge of counsel on a date preceding execution and filing of the Consent to Change Attorney form, the continuing representation toll of the statute of limitations for legal malpractice runs only to the date of the actual discharge and not to the date of the later Consent to Change Attorney.

Relevant Facts

This appeal arises out of the attorney-client relationship between the plaintiff and the defendant attorney in connection with automobile-related personal injury claims. By way of background, the plaintiff had been involved in two separate automobile accidents, one on April 30, 2002 (hereinafter the 2002 accident), and the second on June 17, 2005 (hereinafter the 2005 accident).

The plaintiff initially retained the defendant to prosecute an action relating to the 2002 accident. The defendant thereafter moved in that action to withdraw as counsel, but while that motion was pending, the action was settled on the record in open court on November 16, 2006, for the sum of $100,000. The stipulation of settlement (hereinafter the stipulation) memorialized a reduction of the defendant's contingency fee to 27% and a withdrawal of the defendant's motion to be relieved as counsel, and was so-ordered by Judge Lila Gold of the New York City Civil Court, Kings County.

Thereafter, the plaintiff refused to execute the general release contemplated by the stipulation, as she claimed it was a product of fraud and mistake.

The plaintiff cancelled three appointments with the defendant between the date of the in-court settlement on November 16, 2006, and December 13, 2006. In the months that followed, the defendant's continuing attempts to contact or meet with the plaintiff concerning the settlement of the 2002 accident claim were all unsuccessful, and on May 21, 2007, the defendant filed a second motion to be relieved as counsel. The record does not reveal that any decision was ever rendered on that motion. On November 19, 2007, the plaintiff's new counsel, who had been retained to seek vacatur of the stipulation, advised the defendant in writing that the plaintiff regarded the defendant “as her discharged attorney” and that the defendant was “not authorized by her to take any steps to enforce the stipulation form which was so ordered in altered form after she had signed under false pretenses.”

The plaintiff's new counsel moved in the Civil Court to vacate the stipulation. The matter was referred to Judicial Hearing Officer (hereinafter JHO) Seymour Schwartz to hear and report. JHO Schwartz concluded, after a three-day hearing, that the stipulation was enforceable and more favorable to the plaintiff than an alternate handwritten stipulation proffered by the plaintiff. The JHO's report and recommendations were confirmed in a decision and order of the Civil Court (Sweeney, J.), dated October 29, 2009. An appeal of the Civil Court's order was ultimately dismissed by the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts for failure to perfect.

While the plaintiff litigated the enforceability of the stipulation, the parties formalized a substitution of counsel in connection with the 2002 accident claim. A Consent to Change Attorney dated April 11, 2008, was signed by the plaintiff, the defendant, and incoming counsel, and included reference to the defendant's attorney charging lien. On May 16, 2008, the defendant filed a closing statement with the Office of Court Administration and mailed a copy of the statement to the plaintiff on the same date.

Meanwhile, in the summer of 2005, the plaintiff also retained the defendant to represent her interests with regard to the 2005 accident. As to that matter, the parties' relationship also was rocky and appears to have been negatively affected by the strains that arose during the handling of the 2002 accident claim. On January 15, 2007, the defendant wrote to the plaintiff's physical therapist, advising him that he had been asked to stop handling the 2005 matter and requesting that the therapist's bills be forwarded in the future directly to the plaintiff's insurer. However, in mid-July of 2007, the defendant was negotiating a possible settlement of the plaintiff's 2005 accident claim with an insurance carrier and requested the plaintiff's cooperation in executing medical and insurance authorization forms. On March 13, 2008, the plaintiff took physical possession of the defendant's file on the 2005 accident, and the transfer was memorialized by a receipt signed by the parties and witnessed by the plaintiff's incoming counsel. The plaintiff had not commenced any litigation arising out of the 2005 accident as of that date.

On March 31, 2011, the plaintiff commenced this action against the defendant sounding in legal malpractice and asserting various related fraud, deceit, negligence, contractual, and Judiciary Law causes of action. After interposing an answer and asserting affirmative defenses therein, the defendant moved for summary judgment dismissing the complaint on the grounds, inter alia, that it was both untimely and barred by the doctrine of collateral estoppel. The defendant argued that all of the plaintiff's theories of recovery as to the 2002 accident arose from alleged legal malpractice subject to a three-year statute of limitations measured from the in-court settlement of that action on November 16, 2006, the date that he maintains that the attorney-client relationship ended. Thus, he argued that, the commencement of the action on March 31, 2011, was untimely. The defendant also argued that, since the stipulation settling the 2002 accident claim was upheld by the Civil Court in an order dated October 29, 2009, and the plaintiff's appeal from that order was dismissed by the Appellate Term for failure to perfect, the plaintiff's action as to that matter was barred by collateral estoppel. Regarding the handling of the plaintiff's 2005 accident claim, the defendant likewise argued that his representation ended on November 16, 2006, more than three years prior to the commencement of the instant action, rendering the matter untimely as to it.

In opposition, the plaintiff argued that, as to any legal malpractice committed in connection with the 2002 accident claim, the continuing representation doctrine tolled the statute of limitations up to the execution of the Consent to Change Attorney dated April 11, 2008, thus rendering the action timely. Similarly, the plaintiff argued that her causes of action referable to the 2005 accident claim were timely in that the defendant's representation did not end until he filed an Office of Court Administration (hereinafter OCA) closing statement on May 16, 2008, within three years of the commencement of the action. In the same set of papers, the plaintiff cross-moved for the imposition of sanctions pursuant to CPLR 8303–a and 22 NYCRR 130–1.1.

In the order appealed from, dated March 9, 2012, the Supreme Court granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff's action was barred by the applicable statute of limitations. The plaintiff's cross motion for the imposition of sanctions was, in effect, denied sub silentio.

For the reasons set forth below, we affirm.

Analysis

An action to recover damages for legal malpractice must be commenced within three years from the accrual of the claim (see CPLR 214[6] ; Zorn v. Gilbert, 8 N.Y.3d 933, 934, 834 N.Y.S.2d 702, 866 N.E.2d 1030 ; McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 ; Weiss v. Manfredi, 83 N.Y.2d 974, 977, 616 N.Y.S.2d 325, 639 N.E.2d 1122 ; Macaluso v. Del Col, 95 A.D.3d 959, 960, 944 N.Y.S.2d 589 ; Fleyshman v. Suckle & Schlesinger, PLLC,

91 A.D.3d 591, 592, 937 N.Y.S.2d 92 ; Rupolo v. Fish, 87 A.D.3d 684, 685, 928 N.Y.S.2d 596 ; Krichmar v. Scher, 82 A.D.3d 1164, 1165, 919 N.Y.S.2d 378 ; Hasty Hills Stables, Inc. v. Dorfman, Lynch, Knoebel & Conway, LLP, 52 A.D.3d 566, 567, 860 N.Y.S.2d 182 ). Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court (see McCoy v. Feinman, 99 N.Y.2d at 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 ; Landow v. Snow Becker Krauss, P.C., 111 A.D.3d 795, 975 N.Y.S.2d 119 ; 730 J & J, LLC v. Polizzotto & Polizzotto, Esqs., 69 A.D.3d 704, 705, 893 N.Y.S.2d 174 ; Hasty Hills Stables, Inc. v. Dorfman, Lynch, Knoebel & Conway, LLP, 52 A.D.3d at 567, 860 N.Y.S.2d 182 ; Town of Wallkill v. Rosenstein, 40 A.D.3d 972, 973, 837 N.Y.S.2d 212 ; Iser v. Kerrigan, 37 A.D.3d 662, 663, 830 N.Y.S.2d 343 ), regardless of when the operative facts are discovered by the plaintiff (see Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 726 N.Y.S.2d 365, 750 N.E.2d 67 ; Glamm v. Allen, 57 N.Y.2d 87, 95, 453 N.Y.S.2d 674, 439 N.E.2d 390 ; McDonald v. Edelman & Edelman, P.C., 118 A.D.3d 562, 988 N.Y.S.2d 591 ; Lincoln Place, LLC v. RVP Consulting, Inc., 70 A.D.3d 594, 896 N.Y.S.2d 47 ; St. Stephens Baptist Church, Inc. v. Salzman, 37 A.D.3d 589, 590, 830 N.Y.S.2d 248 ). However, “causes of action alleging legal...