Muller v. Sturman

• Decision Date: 27 March 1981
• Citation: 79 A.D.2d 482,437 N.Y.S.2d 205
• Parties: Marjorie MULLER, Respondent, v. Leon H. STURMAN, Robert W. Clarke, Percival D. Oviatt, Jr., John S. Gilman, Robert M. Schantz, John L. Greisberger, Harry P. Messina, Jr., Beryl Nusbaum, Danta Gullace, Samuel P. Merlo, Robert W. Kessler, Parker L. Weld and Max T. Stoner, all Individually and doing business as Woods, Oviatt, Gilman, Sturman & Clarke, Appellants, and Emil Muller, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 205

437 N.Y.S.2d 205

79 A.D.2d 482

Marjorie MULLER, Respondent, v. Leon H. STURMAN, Robert W. Clarke, Percival D. Oviatt, Jr. John S. Gilman, Robert M. Schantz, John L. Greisberger Harry P. Messina, Jr., Beryl Nusbaum, Danta Gullace, Samuel P. Merlo, Robert W. Kessler, Parker L. Weld and Max T Stoner, all Individually and doing business as Woods Oviatt, Gilman, Sturman & Clarke, Appellants, and Emil Muller, Defendant.

Supreme Court, Appellate Division, Fourth Department.

March 27, 1981.

Woods, Oviatt, Gilman, Sturman & Clarke, Rochester, for appellants (John Titus, Rochester, of counsel).

Lamb, Webster, Walz, Donovan & Sullivan, Rochester, for respondent (Eugene Clifford, Rochester, of counsel).

Before CARDAMONE, J. P., and HANCOCK, CALLAHAN, DENMAN and SCHNEPP, JJ.

SCHNEPP, Justice.

Appellants appeal from an order of Special Term denying their motion for summary judgment in this malpractice action which is based on their alleged failure to effect proper and timely service of process in a lawsuit brought to enforce payment on a promissory note. Appellants, who individually comprise the members of the defendant law firm, claim that the within action commenced more than three years after its accrual is barred by the Statute of Limitations and that no factual issue exists which substantiates plaintiff's claim that she was continuously represented by them subsequent to their alleged act of malpractice.

In 1971 plaintiff retained Robert W. Clarke, one of the appellants, to represent her in various matters involving her former husband, defendant Emil Muller, which included collection of the principal and interest of a $13,000 promissory note dated May 24, 1967, which he executed and delivered to her. The appellants prepared a summons and complaint seeking payment of the note which was improperly served on May 5, 1972 on one of Emil Muller's sons. Muller, in fact, has never been served in that action. In their moving papers appellants claim that they did not prosecute the action on the note or represent plaintiff after November 8, 1973 when she told Clarke to do nothing further in connection with her legal affairs including collection of the note. Appellants offered various records to verify the date and nature of this conference between the parties. To further buttress their claim, appellants point to plaintiff's testimony in an examination before trial that, while she did not remember any such conversation, she believed that after a conversation with Clarke in November 1973 appellants had ceased to represent her and "dropped" her lawsuits and that she looked until the summer of 1977 for another attorney to represent her. In response plaintiff claims that a conversation between her and Clarke occurred in the summer of 1975, not November 1973, when she telephoned him to seek legal advice in obtaining payment of overdue alimony. She denies, however, that she ever gave instructions to discontinue efforts to enforce payment of the note. She further states that the tenor of appellants' cover letter of May 28, 1976 forwarding her file supports her contention that the attorney-client relationship terminated at about that time. Her testimony indicates that she knew that the original summons was served by mistake on her son and that she did not know whether process was ever served on Muller. Although plaintiff testified that she assumed that the appellants were proceeding with the claims against Muller and understood that the summons was to be re-served, she made no inquiry of appellants as to the status of the lawsuit.

This malpractice action was commenced on April 20, 1978, clearly beyond the three year period of limitation (CPLR 214, subd. 6) if measured from November 8, 1973, when appellants claim the attorney-client relationship ceased, or from May 24, 1974, six years after the due date of the note, and the time limited by law for commencing an action on the note (CPLR 213). Plaintiff contends, however, that the malpractice action accurred when her "continuous representation" ended either in May 1976, when her file was returned to her, or in August 1977, when the original note was returned to her by the appellants, and that factual issues are present which require a trial.

A cause of action in malpractice generally accrues at the time of the injury (see Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, 237, N.Y.S.2d 714, 188 N.E.2d 142, mod. 12 N.Y.2d 1073, 239 N.Y.S.2d 896, 190 N.E.2d 253; Conklin v. Draper, 254 N.Y. 620, 173 N.E. 892; Schiffman v. Hospital for Joint Diseases, 36 A.D.2d 31, 319 N.Y.S.2d 674). The "continuous treatment" exception extends the accrual of the cause of action in medical malpractice to the end of a patient's treatment when the course of treatment which includes the wrongful act runs continuously and is related to the same original condition, injury or illness (Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777; CPLR 214-a). In Borgia v. City of New York (supra, p. 157, 237 N.Y.S.2d 319, 187 N.E.2d 777) the Court of Appeals defined continuous treatment as "treatment for the same or related illnesses or injuries, continuing after the alleged acts of malpractice, not mere continuity of a general physician-patient relationship".

The courts have also applied the "continuous treatment" rule to other areas of professional malpractice and have limited its application to instances where the professional's involvement after the alleged malpractice is for the performance of the same or related services and is not merely continuity of a general professional relationship (Naetzker v. Brocton Cent. School Dist., 50 A.D.2d 142, 376 N.Y.S.2d 300, revd. on other grds. 41 N.Y.2d 929, 394 N.Y.S.2d 627, 363 N.E.2d 351; Tool v. Boutelle, 91 Misc.2d 464, 398 N.Y.S.2d 128; Dura-Bilt Remodelers v. Albanese, 86 Misc.2d 172, 382 N.Y.S.2d 455; see, also 1 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 214.22a, 1980 Supp., p. 69). When applied to attorney malpractice the principle is referred to as the "continuous representation" rule (Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 214:6, pp. 436-439) and the accrual date of the cause of action is fixed when the attorney-client relationship ceases (Gilbert Props. v. Millstein, 33 N.Y.2d 857, 352 N.Y.S.2d 198, 307 N.E.2d 257; Siegel v. Kranis, 29 A.D.2d 477).

In those cases where the continuous representation doctrine has been applied to attorney malpractice there are clear indicia of an ongoing, continuous, developing and dependent relationship between the client and the attorney often involving an attempt by the attorney to rectify an alleged act of malpractice (see, e. g., Citibank (N.Y. State), N.A. v. Suthers, 68 A.D.2d 790, 418 N.Y.S.2d 679; Grago v. Robertson, 49 A.D.2d 645, 370 N.Y.S.2d 255; Siegel v. Kranis, 29 A.D.2d 477, 288 N.Y.S.2d 831, mod. 34 A.D.2d 988, 312 N.Y.S.2d 540, supra). In Citibank (N.Y. State), N.A. v. Suthers (supra) the continuous representation exception was applied to toll the Statute of Limitations where a defendant attorney made promises to take remedial steps to cure an earlier alleged wrong. It was there held that plaintiffs placed their trust and confidence in the defendant attorney and that an ongoing, developing and...