Opinion
Index No. 151606/2019
02-19-2020
GEORGIA FRAUMENI, Plaintiff v. THE LAW FRIM OF JONATHAN D'AGOSTINO P.C. JONAHTAN D'AGOSTINO, ESQ.; EDWARD J. PAVIA, ESQ., GLEN DEVORA, ESQ., and FRANK J. DIBARI, ESQ. Defendant.
NYSCEF DOC. NO. 42 Present:
DECISION AND ORDER
Motion Seq. No. 001 Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion Sequence Number 001
| Numbered | |
|---|---|
| Notice of Motion by Defendants (001), | 1 |
| Affidavit in Support by Glen Devora, | 2 |
| Memorandum of Law in Support, | 3 |
| Affidavit in Opposition by Plaintiff, | 4 |
| Reply Affirmation by Defendant | 5 |
| Memorandum of Law in Reply | 6 |
| Transcript of Oral Argument Held 1/31/20 | 7 |
Defendant's Motion
Defendants' move by Notice of Motion (Seq. No. 001) for an order pursuant to CPLR §3211(a)(5) dismissing the present legal malpractice cause of action on the ground that the Plaintiff failed to commence her case within the applicable three-year statute of limitations. Defendant further moves pursuant to CPLR §3211(a)(7) to dismiss the second cause of action, claiming a violation of Judiciary Law §487, on the basis that Plaintiff's claim fails to state a sustainable cause of action. Plaintiff has filed written opposition to the Defendants' motion, arguing that the statute of limitations was tolled by the doctrine of continuous representation thus rendering the present action timely. Oral argument of the motion was heard on January 31, 2020.
Relevant Facts
Plaintiff asserts a cause of action for legal malpractice and for a violation of Judiciary Law §487. Plaintiff's claims arise out of a pair of related personal injury lawsuits that the Defendants commenced on her behalf. The first action, filed under Index number 100052/2013, was commenced on January 11, 2013. The second action, filed under Index number 101316/2015, was commenced in or around October of 2015.
In sum and substance, Plaintiff argues that the Defendants, who then represented her, commenced the underlying lawsuits against incorrect entities who were not liable for her injuries. Plaintiff further alleges that as a result of this "mistake" both cases were dismissed, resulting in a failure to recover. Finally, Plaintiff claims that since the statute of limitations had run against the allegedly culpable entities, she was unable to commence a new lawsuit against the correct defendants.
Defendants have filed the present motion to dismiss arguing that regardless of any possible liability that they may have to the Plaintiff, this legal malpractice matter is time barred as a matter of law as it was commenced on July 3, 2019, more than three years from the end of their representation. In this regard, it is undisputed that the Defendants' filed an application to withdraw as counsel in the underlying proceedings on or about April 16, 2016. It is further undisputed that the motion to withdraw was ultimately granted on July 15, 2016. Plaintiff argues that the statute of limitations should run from the court order granting withdrawal, which would render the present action timely. Defendants argue that the statute of limitations should run from May 4, 2016 when the Plaintiff demanded and received her legal file from the Defendants, or from some earlier date when the Plaintiff evidenced a lack of "continuing trust and confidence" in the Defendants.
Applicable Law
"In moving to dismiss a case pursuant to CPLR §3211(a)(5) as barred by the applicable statute of limitations, the moving defendant has the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable." Schrull v. Weis , 166 A.D.3d 829 (2d Dept. 2018). The statute of limitations period for a claim of legal malpractice is three years from when that cause of action accrues. See Jemima O. v. Schwartzapfel , P.C., 178 A.D.3d 474 (1st Dept. 2019). A claim for legal malpractice accrues on the date that the malpractice allegedly occurs, not when it is discovered. See Scalfani v. Khan , 169 A.D.3d 846 (2d Dept. 2019). However, pursuant to the doctrine of continuous representation, the limitations period is tolled until the attorney's continuing representation of the client regarding that particular matter terminates. See Potenza v. Giaimo , 165 A.D.3d 1186 (2d Dept. 2018). In order for the continuous representation doctrine to apply, there must be clear "indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney" together with a predicate of "continuing trust and confidence in the relationship between the parties." Luk Lamellen U. Kupplungbau GmbH v. Lerner , 166 A.D.2d 505 (2d Dept. 1990). A ministerial act, such as the filing of a motion to withdraw, or a consent to change attorney, is not necessarily determinative, rather, what constitutes a loss of trust and confidence is fact specific, varying from case to case, and may be demonstrated by relevant documentary evidence or by the client's actions. See Farage v. Ehrenberg , 124 A.D.3d 159 (2d Dept. 2014).
In the present case, the alleged legal malpractice occurred when the Defendants' commenced the underlying lawsuits against the incorrect defendants. These cases, filed in 2013 and 2015 respectively, are both clearly outside the three-year statute of limitations window for the present 2019 malpractice action. Accordingly, the Defendants have met their prima facie burden of establishing that any alleged malpractice accrued outside of the applicable statute of limitations. See Webster v. Sherman , 165 A.D.3d 738 (2d Dept. 2018). This shifts the burden to the Plaintiff to raise a triable issue of fact regarding the continuous representation doctrine.
In opposition, Plaintiff argues that she was never served with the motion to withdraw as counsel, and that the Defendants continued to perform legal services on her behalf while the motion was pending. Moreover, she claims that she considered the Defendants to be her attorneys until such time as they were officially discharged by the Court on July 15, 2016. However, these allegations, standing alone, are insufficient to raise a triable issue of fact. Rather this Court must also consider the available documentary evidence, together with the actions of the parties, to determine if an ongoing, developing, and dependent relationship based upon trust and confidence existed sufficient to toll the statute of limitations. See Tantleff v. Kestenbaum & Mark , 131 A.D.3d 955 (2d Dept. 2015).
In support of their application the Defendants provide voluminous email correspondence between themselves and the Plaintiff. A review of this correspondence reveals that Plaintiff repeatedly evidenced, through her statements and actions, that she had lost trust and confidence in the Defendants' representation. In one such email, dated March 15, 2016, the Plaintiff went so far as to actually state that she "lost all trust" in the Defendants. Other emails from the same time period indicate that she was "confused and disheartened" with their representation, and that she had "another lawyer investigating the case." In addition, the Plaintiff repeatedly indicated that she wanted her legal file returned to her so that she could investigate what the Defendant's had done wrong. In one such email, dated May 1, 2016, the Plaintiff admits that she was aware that the Defendants had filed a motion to withdraw as counsel in April of 2016, and that they therefore had no "legitimate reason" to keep her file. Finally, on May 4, 2016, the Plaintiff physically retrieved her file from the Defendants and signed an acknowledgment indicating the same. However, before retrieving her file she wrote the Defendants one final email wherein she indicated that:
I have [a] letter to the Grievance Committee ready to be mailed together with copies of the bank and forth emails concerning my efforts to obtain this file. You have my word that if you are once again wasting my time that I shall stop at the post office on the way home.
Clearly Plaintiff's demand for the return of her file, after indicating that she has lost all trust in their representation, when combined with a threat to mail a letter of complaint to the Grievance Committee, is compelling evidence that she had lost all trust and confidence in the Defendants as of May 4, 2016 at the latest. This loss of trust and confidence was solidified when the Plaintiff obtained her original legal file on that same date, with the stated intention of having another lawyer investigate it. See Marzario v. Snitow Kanfer Holzer & Millus , LLP , 178 A.D.3d 527 (1st Dept. 2019); see also Aseel v. Jonathan E. Kroll & Assoc., PLLC , 106 A.D.3d 1037 (2d Dept. 2013).
Defendant argues that the Plaintiff's retrieval of the legal file alone is sufficient to evidence that their representation had ended. While there is no doubt that the removal of the original file from their office placed the Defendants in a position where they could no longer reasonably represent the Plaintiff, this single action, standing alone, would likely be insufficient to stop the continuous representation toll. However, when viewed in conjunction with the then pending motion to withdraw as counsel, and the various communications between Plaintiff and the Defendants, it is clear that there was no longer a continuing, developing, dependent relationship of trust and confidence between the parties. "The essence of a continuous representation toll is the client's confidence in the attorney's ability and good faith, such that the client cannot be expected to question and assess the techniques employed or the manner in which the services are rendered." Herscho v. Gordon & Gordon , 2015 NY Slip Op 30476(U) (Sup. Ct. Qns. Cty. 2015). Here the motion record clearly establishes that the Plaintiff had no confidence, or trust, in the Defendants as early as March of 2016. The ultimate granting of the motion to withdraw as counsel in June of 2016 was nothing more than a ministerial act solemnizing what had already happened, a complete breakdown of the attorney client relationship. See Marzario v. Snitow Kanfer Holtzer & Millus , LLP , 2018 NY Slip Op 31024(U) (Sup. Ct. NY Cty. 2017); see also Aaron v. Roemer , Wallens & Mineaux , LLP , 272 A.D.2d 752 (3rd Dept. 2000). Succinctly stated, the continuous representation toll ended at the earliest in March of 2016 or the latest when the file was retrieved On May 4, 2016. As the present action was commenced on July 3, 2019, it falls outside the three-year statute of limitations applicable to legal malpractice actions.
Accordingly, after considering the arguments and documentary evidence offered by both sides, particularly the emails between Plaintiff and the Defendants, the present motion to dismiss this legal malpractice action as time barred is hereby granted. As the Plaintiff's Judiciary Law §487 claim arises out of the same transactions as the malpractice cause of action, and does not seek distinct damages, the same three-year statute of limitation applies. See Farage v. Ehrenberg , 124 A.D.3d 159 (2d Dept. 2014); see also, Benjamin v. Allstate Ins. Co., 127 A.D.3d 1120 (2d Dept. 2015). Thus, that cause of action is also dismissed as time barred.
This constitutes the Decision and Order of the Court in relation to Motion Seq. No. 001, all claims raised by either party that were not specifically addressed herein are hereby dismissed.
Dated: February 19, 2020
/s/_________
Hon. Catherine M. DiDomenico
Acting Justice Supreme Court