What is Legal Malpractice in New York?
When someone engages the services of a New York lawyer, a contract is struck. When the New York attorney fails to live up to these agreements and causes harm to the client, it is called legal malpractice. The first element of a legal malpractice case is with regard to breach of the contract: what you were entitled to as a result of the agreement with the New York attorney. In other words, what are your rights to damages as against the legal malpractice you suffered? Your right to damages must be calculated so that the damages are equal to "the value of the underlying action lost to the plaintiff." However, that can be difficult to determine and requires an examination into the possible outcomes had the attorney not engaged in legal malpractice. This would require an examination of the outcome of the underlying action lost to the plaintiff that the lawyer engaged in legal malpractice on. There are a number of decisions that break down these statistics. See for example Schlitt v. Reilly Partners L.L.P., 88 AD3d 897 (2nd Dept. 2011) . The plaintiff must show that "but for plaintiff’s reliance upon the breach of duty of the defendants, the damages would have been avoided." Sorenson v. Wolff & Samson, 84 AD3d 1154 (2nd Dept. 2011). "[L]egal malpractice actions involve a breach of contract." Citizens United to Save Our Veterans Hous. 7, Inc. v. Garrison, 70 AD3d 879 (2nd Dept. 2010); See also New York City Economic Development Corp. v. Heller, 76 AD3d 889 (2nd Dept. 2010). "The essential elements of legal malpractice are the existence of an attorney-client relationship between the parties, negligence by the attorney, and damages," Nielsen v. Steinbach, 75 AD3d 461 (1st Dept. 2010) quoting Coonrad v. Holland & Knight, 42 AD3d 44 (1st Dept. 2007) "The essential elements of a legal malpractice claim . . . are the existence of an attorney-client relationship, negligent representation by the attorney, and consequences or damages to the client," . . . [S]upportable legal malpractice claims require at a minimum that the plaintiff allege a meritorious claim." Persaud v. D.P.W. Enterprises, Inc., 82 AD3d 626, 626 (2nd Dept. 2011)
Statute of Limitations for Legal Malpractice Outline
Understanding the Legal Malpractice Statute of Limitations in NY
The application of the statute of limitations for legal malpractice cases is a complex area of law, made more so by the two different measures of time required to be met. There is a separate six (6) year measure for the initial negligence that ultimately leads to damages and an additional three (3) years if there is a continuing, and separate, wrongful act upon which a case can be brought. This is the simple meaning of the Court of Appeals opinion in C.P.L.R. §214(6) :
"The statute of limitations for a legal malpractice claim is three years after the date of the act, omission or neglect complained of or from the time the plaintiff-client reasonably should have discovered both the fraud and the resulting injury [C.P.L. §213(8)]"
Of course, the statute of limitation concerns only the time within which a plaintiff must bring their case or be disallowed their right to relief. It plays no part of the merits or the success of the case. Yet, it is an extremely important procedural matter, that can lead to the dismissal of a case on the first motion made. The purpose of this post is to discuss the matter and to learn from it.
What is the statute of limitation? It can be defined as the amount of time during which a lawsuit may be filed or a criminal prosecution begun. Not to be confused with a "statute of repose" which places a final deadline on the legal rights of action for recovery of "damages" or loss for a specified period. For a legal malpractice claim, the C.P.L.R. (Code of Civil Procedure) §214.6 states,
"The time within which an action upon the ground of dental, limited liability partnership, medical, optometric, osteopathic, chiropractic or podiatric malpractice must be commenced shall be governed by section two hundred fifteen, two hundred sixteen or two hundred seventeen of this chapter."
The big question is how to calculate the time limit. The running begins now with the discovery rule, which allows for an exception to the limitations period if the client does not discover the wrongdoing until the legal proceedings are over. This is not to be confused with a case where the legal proceeding eventually ends, or continues after service of the answer. It is determined all within the context of the client- lawyer relationship where the client learns at a later date that the lawyer’s act, neglect or error caused harm.
Legal Malpractice Statute of Limitations Time Limits
The legal malpractice statute of limitations is a confusing thing, made more difficult to ascertain when the defendant is a law firm. Under CPLR 214 (6), the statute of limitations for a legal malpractice lawsuit is three (3) years from the malpractice, or six (6) months after the date that the claim could have been prosecuted, had there not been an attorney. Any exception to this statute of limitations must be claimed within that three (3) years time frame.
This three (3) year statute of limitations, however, can often be confusing, is somewhat ambiguous, and subject to interpretation. Even the wording of CPLR 214 (6), discussed supra, has been debated. Many courts have held that this statute of limitations begins to run as soon as the negligence occurs, not at the conclusion of the case. This was the holding in the case of Borge v. Marders, 7 AD3d 353 (2004). The Court wrote: "Until the client retains another attorney… the attorney-client relationship continues. Otherwise, the statute would bar suit before the client realized he was harmed." Borge, 7 AD3d at 354. However, under the holding of Romaniwe v. Sethi, 205 AD2d 125, 615 NYS2d 434 (1st Dep’t 1994), a law firm’s negligence in settling a child custody matter resulting in the client’s loss of custody of her child occurred when the custody order was granted, and not when the order became final.
The 6-month extension discussed in the beginning of this section does not apply if the plaintiff-lawyer relationship continues on a matter the lawyer had no prior connection to. According to the holding in Slade v. Steinberg, 165 AD2d 551, 562 NYS2d 163 (2d Dep’t 1991), the 6-month extension applies only to the lawsuit that was lost on the merits, and cannot be extended to include subsequent lawsuits which were begun long after the original suit was lost.
In a similar fashion, in the case of Blueberry Realty Corp. v. Flushing Nat’l Bank & Trust Co., 115 AD2d 547, 496 NYS2d 701 (1st Dep’t 1986), the Appellate Division of the First Department ruled that the extension allowed for in CPLR 214 (6) did not apply if the negligence caused a collateral loss, one that was independent and unrelated to the lawsuit prior to being named the plaintiff of record in the case.
Missed Statute of Limitations Penalty
In New York State, when a legal malpractice claim is not brought within the applicable statute of limitations, the court will dismiss the claim. In all cases, that dismissal can occur with great prejudice to the party claiming the legal malpractice. The belated discovery rule does not apply to a legal malpractice case and a court will not allow expansion of the statute period based upon "solitary" issues or events. Although it seems intuitively obvious, it is cited again and again that a new statute of limitations does not run or arise because the client continues to represent a wholly separate and unrelated matter after the underlying matter has been completed. For example, in Mehlman, 153 AD2d 504, 506, 544 N.Y.S.2d 718, 719 (1989). In addition, while claims arising under a single retainer may be consolidated in a single action, a separate and distinct relationship must exist to support a malpractice action. See Graham v. Lewiston Med., 151 A.D.2d 986, 986 (4th Dep’t 1989). See also Kotsis v. Niles, 33 N.Y.2d 375, 379-80, 350 N.E.2d 333, 335-36, 353 N.Y.S.2d 746, 749-50 (1974). Thus, even when a claimant has evidence that malpractice occurred at a prior stage of the litigation, the Statute of Limitations will probably bar any recovery if the original judgment still stands.
Statute of Limitations Exceptions/Tolling
The various nuances and exceptions to the statute of limitations require an experienced New York lawyer who is intimately familiar with all possible exceptions to the deadline imposed. For example, there are instances of equitable estoppel, wherein the defendants conceal their malpractice through dishonest means, and they cannot assert the statute of limitations against a plaintiff. We are aware of decisions which support that proposition. There are also instances of discovery toll, i.e. where the injured person was unaware of the injury, or, could not possibly discover the injury, or did not properly wake up to the wrongdoing until much later – there is also case law supporting that position. In one case the question of how long the injured person must wait for a decision of the Board of Appeals on his/her previous attorney’s appellate motion, and whether the 30 day time limit ran, was heard. Once the Tolling of the statute of limitations is completed , you must be very careful to commence the lawsuit within a reasonable period of time, or under whatever deadline the court imposes on the specifics of your lawsuit. If the action is too late, it may be dismissed. There are sometimes other limitations on when you can sue the negligent attorney. For example, in legal malpractice, you have only a short time to sue a previous attorney who represented you in an ADMITTED sequence of 2 lawsuits. If you miss this second statute of limitations, 3 years after the return of the verdict becomes the time limit. However, since the matter is now more than 3 years old, this is a deadline which precludes suit in both legal malpractice and the underlying case. In such a case, in any court, your legal malpractice case will be dismissed on failure to state a claim, as to the original attorney, and then the underlying case will be dismissed as frivolous litigation and sanctions will be imposed.
What to Do if You Believe Legal Malpractice has Occurred
When you suspect legal malpractice transpired, the first thing you must do is figure out a statute of limitations. For most cases it is three years from the date of malpractice. The law in NY specifying this time period is CPLR (Civil Practice Law and Rules) section 214 costs two dollars and requires close reading. Once you ascertain the time period and the calendar deadline, you must determine what county or counties the case is located in. If the malpractice occurred in Suffolk county, for example, this is important. You must locate the courthouse of that county, and find out if they have an attorney grievance proceeder. Most counties do.
In Nassau County, the grievance procedure is fully functional and has both a criminal and civil component. The grievance procedure acts as a bar to legal malpractice claims that arise out of the legal services performed in the same office. For example, if the legal malpractice is in connection with the real estate closing, financial fraud, will and estate matters, business law, or criminal defense in the same law office, the grievance procedure works well.
The Nassau County committee on professional conduct accepts complaints, investigates them and puts together a case if there is an offense. Once the hearing is held, a jury hears the case and makes a recommendation to the court. At this point a decision is made whether the attorney should be suspended or disbarred. If an attorney is disbarred, that sends up red flags to any insurance carrier for the attorney. In many cases, legal malpractice cases are settled after an adverse decision.
Some attorneys may consider using an Expert to testify. In many cases we find that the use of experts really does not help a case because they do not address what legal action you could have taken given the poor advice. In the above example, let’s say your attorney failed to put the property into the trust and when he finds out he did not, he tells you he cannot fix the error. Is the question an expert can help with? Or is it a simple case of no one can do anything to fix it so we are left with a case for settlement?
Mediation is yet another option that often is used. Many times we try it and see if it will work. We sometimes find that it gives us a better handle on what a defense will be like. Most legal malpractice cases if they are to be won, settle. The real question is how much do you need to sue for, and how much can you then settle for? The mediation process, the use of an expert and then just proceeding with the case are the three options we have found successful.
The bottom line is to know your deadline, know your county, and choose which path best suits the fact pattern.
How to Obtain Legal Consultation regarding Statute of Limitations
There are numerous articles out there regarding issues of your right to seek damages in a legal malpractice case, and the myriad of ways for the defendant lawyer to use statute of limitations as a defense.
Most of these articles are thought-provoking and true. But when you have been a victim of a legal malpractice case, the question is – how do I find out if I am in the statute of limitations. There is a great deal of information available to you (on this site, and on others as well), but not all information is good information. Information that uses terms like "discoverability" and other arcane and esoteric phrases may not be "the answer".
The best way to find out if you are within the statute of limitations on a legal malpractice case, is to get legal advice. Yes, yes..we know that we are a legal malpractice plaintiff firm, and we are suggesting that you get advice from another law firm .
However, there are differences of legal thinking among lawyers. The statute of limitations for legal malpractice is one year from the end of the former representation or three years from the date of the occurrence – whichever is shorter. A lawyer representing you will have this law in mind, and a legal malpractice firm well versed in the strategy of statute of limitation defenses will also have this law in mind. They both arrive at the same answer…and you avoid the tango.
When you speak with a legal malpractice lawyer, the law is still the same – statute of limitations defenses are dangerous because the timing may be very tight. You are better off with face to face discussions (but if you cannot make an appointment, we can speak by phone), because this is a discussion that must be done carefully.