On November 14, 2018, the Appellate Division, Second Department reversed Supreme Court Justice Paul Marx, who dismissed a legal malpractice on the ground that it had not been filed within the three year statute of limitations. The Appellate Court found that there was an issue of fact on whether the continuous representation doctrine applied to extend the deadline. The plaintiff retained the defendant attorney in September 2008 to sue a homeowner for personal injuries he sustained in July 2008 while performing carpentry work at their home using the homeowner's alleged defective table saw.
The plaintiff alleged that the attorney told him that it "would take up to seven years to resolve" his claim. He also claimed that he called the attorney' secretary "every six to eight months to check on the status" of his claim. The legal malpractice complaint also alleged that he met with the attorney approximately six years after he had retained him and was shocked to learn his attorney thought he had "no case" and believed the client had "disappeared". The personal injury claim was never filed and the time to do so had passed years earlier. The attorney persuaded the lower court to dismiss the legal malpractice action claiming the statute of limitations on the legal malpractice claim began to run in July 2011 when the personal injury three year statute of limitations expired. Since the legal malpractice suit wasn't filed until August 2015, it would have been untimely but for the continuous representation doctrine. A jury will decide whether the plaintiff knew or should have known that the attorney withdrew from representing the plaintiff within three years of filing the legal malpractice action. If so, the malpractice action will result in a defense verdict. Schrull v Weis, 2018 WL 5931158