Client's Demand For Return of Litigation Files Marks End of Attorney-Client Relationship

The Appellate Division, Second Department on April 19, 2023 ruled upon an interesting question of law regarding the statute of limitations in legal malpractice actions. Here are the basic facts. Client sued attorney for legal malpractice alleging that her personal injury actions were dismissed because the wrong parties were sued and it was too late to sue the correct parties. The 3 year deadline or statute of limitations for filing legal malpractice actions runs from the date of the alleged wrongdoing, or in this case, the date suit was filed against the wrong parties. But where there is "continuous representation" on the same matter complained of,  the statute of limitations is tolled or delayed until the last date the attorney represented the client.

This legal malpractice action was dismissed as untimely turning on the penultimate question - did the continuous representation toll end when the client demanded and received her litigation files from the attorney; or, - 71 days later when the Court issued an Order relieving plaintiff's counsel from further representation? If the statute of limitations continuous representation toll ran from the date of Court Order, the legal malpractice claim was timely. The Court explained why the toll must run end on the date the client demanded and received her files: "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....Therefore, [o]ne of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties." Fraumeni v Law Firm of Jonathan D'Agostino, PC, 2023 N.Y. Slip Op. 01984

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts " and "Top New York Settlements." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He was a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!


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