Goicoechea v. Law Offices of Stephen R. Kihl

• Decision Date: 23 December 1996
• Citation: 234 A.D.2d 507,651 N.Y.S.2d 198
• Parties: Julio GOICOECHEA, Appellant, v. LAW OFFICES of STEPHEN R. KIHL, et al., Defendants, Stuart R. Kramer, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 198

651 N.Y.S.2d 198

234 A.D.2d 507

Julio GOICOECHEA, Appellant, v. LAW OFFICES of STEPHEN R. KIHL, et al., Defendants Stuart R. Kramer, Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 23, 1996.

Fotopoulos, Rosenblatt, Green & Frasciello, New York City, (Dimitrios C. Fotopoulos and Suzan D. Baukney-Moran, of counsel), for appellant.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, (Peter L. Contini and Joy Woda Schneider, of counsel), for respondent.

Before MILLER, J.P., and SULLIVAN, ALTMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for legal malpractice and breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Spodek, J.), dated November 15, 1995, as granted the defendant Stuart R. Kramer's motion for summary judgment dismissing the complaint as to him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The law is well settled that an action to recover damages for legal malpractice accrues when the malpractice is committed (see, Glamm v. Allen, 57 N.Y.2d 87, 93, 453 N.Y.S.2d 674, 439 N.E.2d 390; Boyd v. Gering, Gross & Gross, 226 A.D.2d 489, 641 N.Y.S.2d 108; Tal-Spons Corp. v. Nurnberg, 213 A.D.2d 395, 396, 623 N.Y.S.2d 604). "What is important is when the malpractice was committed, not when the client discovered it" (Glamm v. Allen, supra, at 95, 453 N.Y.S.2d 674, 439 N.E.2d 390). Similarly, a cause of action to recover damages for breach of contract accrues when the breach occurs (see, Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402, 599 N.Y.S.2d 501, 615 N.E.2d 985; Boyd v. Gering, Gross & Gross, supra; Tal-Spons Corp. v. Nurnberg, supra). Here, both causes of action accrued in 1983, when, after having been retained by the plaintiff, the defendant Stuart R. Kramer failed to commence an action to recover damages for personal injuries sustained by the plaintiff in a 1980 automobile accident.

Pursuant to the continuous representation theory, the Statute of Limitations for causes of action sounding in legal malpractice is tolled until the attorney's ongoing representation in question is completed (see, Weiss v. Manfredi, 83 N.Y.2d 974, 616 N.Y.S.2d 325, 639 N.E.2d 1122; Glamm v. Allen, 57 N.Y.2d 87, 453 N.Y.S.2d 674, 439 N.E.2d 390, supra; Boorman v. Bleakley, Platt, Schmidt, Hart & Fritz, 88 A.D.2d 942, 451 N.Y.S.2d 179). However, the application of the continuous representation doctrine is limited to situations in which the attorney who allegedly was responsible for the malpractice continues to represent the client in that case (see, Glamm v. Allen, supra, at 94, 453 N.Y.S.2d 674, 439 N.E.2d 390). "When that relationship ends, for whatever reason, the purpose for applying the continuous representation rule no longer exists" (Glamm v. Allen, ...