On October 31, 2019, an appellate court covering Manhattan refused to dismiss a legal malpractice claim against a law firm that litigated a client's foreclosure action involving a property on West 12th Street. The law firm moved to dismiss the client's claim arguing that it was filed four years after they terminated their representation in the foreclosure action.The statute of limitations or deadline for filing legal malpractice claims in New York is three years (subject to certain exceptions not relevant here). The Court agreed that the client's malpractice claim was timely.
Despite presenting proof of a termination of legal services letter sent to the client four years prior to the filing of the legal malpractice suit, the Court pointed out there are only two ways an attorney can terminate or withdraw from representing a client in an action or lawsuit. Under CPLR Section 321(b) an attorney representing a client in any action (lawsuit), who wishes to withdraw, must either:1) file with the Court a document entitled "Consent To Change Attorney", signed by both the client and attorney; or, 2) obtain an Order of the Court authorizing the withdrawal, by filing a motion to be relieved as attorney. Had the defendant attorney followed proper procedure in withdrawing from the foreclosure action (four years earlier) the motion to dismiss the legal malpractice action would have been granted. Courtney v McDonald, 2019 WL 5606691