Woodson v. American Transit Insurance Co.10/11/2005
f the professional misconduct (Glamm v Allen, 57 NY2d 87 ; Murray Hill Investments, Inc. v Parker Chapin Flattau & Klimpl, LLP, 305 AD2d 228 [1st Dept 2003]).
In determining the date of accrual, " hat is important is when the malpractice was committed, not when the client discovered it" (Murray Hill, supra at 95; see, McCoy v Feinman, 99 NY2d 295 ; Shumsky v Eisenstein, 96 NY2d 164 ; Wells Fargo Home Mortgage, Inc. v Zeichner, Ellman & Krause, LLP, 5 AD2d 128 [1st Dept 2004]). Accordingly, accrual is not delayed until the damages develop or become quantifiable or certain (see, Gilbert Props., Inc. v Millstein, 40 AD2d 100 [1st Dept 1972], aff'd 33 NY2d 857 ; McCoy, supra; see, e.g., Aaron v Roemer, Wallens & Mineaux, LLP, 272 AD2d 752 [3d Dept 2000][malpractice claim accrued at time attorney negligently prepared answer to complaint, not at time the money judgment was entered against defendant as a result]).
Plaintiff argues that there was a continuous representation of Dansby by the attorney defendants, and that therefore the statute of limitations did not begin to run until entry of the Dansby judgment.
Although the continuous representation doctrine applies to legal malpractice claims, the plaintiff must demonstrate "clear indicia of an ongoing, continuous, developing and dependent relationship between the client and the attorney" (Muller v Sturman, 79 AD2d 482, 485 [4th Dept 1981]; see, In Re Estate of Merker, 18 AD3d 332 [1st Dept 2005]) or "a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim" (McCoy, supra at 306). Furthermore, " ne of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties" (Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506 (2d Dept 1990]). The doctrine does not apply where the relationship has been "clearly ruptured" (Murray Hill Investments, Inc. v Parker Chapin Flattau & Klimpl, LLP, 305 AD2d 228 [1st Dept 2003]; see, Aaron, supra), such as by representation by new counsel (see, In Re Merker, supra). In such instances, formal termination or withdrawal of counsel is unnecessary (see, Aaron, supra). A mere failure to take action to protect the client's interest does not qualify as continuous representation in the absence of such an underlying relationship of trust and confidence (see, Shumsky, supra).
Plaintiff has not submitted any evidence of an ongoing dependant relationship between Dansby and the Attorney Defendants during the relevant period. Rather, it is undisputed that between September 1992 and January 1995, Dansby was served with numerous legal papers by the parties, including plaintiff, identifying him as "defendant pro se." As noted, BSW assumed his defense in February 1995, a fact which would have ended the Attorney Defendants' duty to act for him even in the absence of a formal withdrawal (see, MacArthur v Hall, McNicol, Hamilton & Clark, 217 AD2d 429 [1st Dept 1995]). Although the attorney-client relationship may continue for limitations purposes, during a time when counsel is compelled to represent the client by court order despite a breakdown of trust and confidence (see, Deutsch v Polly N. Passonneau, P.C., 297 AD2d 571 [1st Dept 2002]), this is not such a case. Because the claims against the Attorney Defendants are so clearly time-barred, it is unnecessary to reach the Attorney Defendants' other grounds for dismissal (see, Caplan v Winslett, 218 AD2d 148 [1st Dept 1996]; Salman v Econo Lodge, 303 AD2d 293 [4th Dept 2003]).
The motion of the Attorney defendants for dismissal of the action against them, is granted.
ATIC'S MOTI
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