Sue Your Attorney for Missing the Statute of Limitations
Attorneys are among the most extensively educated and rigorously trained members of the professions, but they do make mistakes. When they do, the consequences for the client can be tremendous. One of the most common examples of legal malpractice occurs when a lawyer fails to file his or her client's lawsuit prior to the expiration of the statute of limitations. When this happens, the client is disqualified from pursuing further legal action in the case, and may be deprived of the opportunity to claim compensation and secure the justice that he or she deserves. The statute of limitations in any given case depends on the nature of the claim, with different deadlines for each type of case according to the provisions of New York law:
- 90 Days to file a Notice of Claim against a municipality like the City of New York
- One year for intentional torts such as assault or defamation
- Two years for wrongful death claims
- Two and a half years for medical malpractice lawsuits
- Three years for personal injury claims and other claims of negligence
If a plaintiff's attorney fails to file the lawsuit prior to the expiration of the statute of limitations, the claim will be dismissed as untimely. If this has happened to you, the good news is that you may not have to pay the price for your lawyer's mistakes. Come to the Law Offices of Ronald C. Burke, Esq. for help from a New York legal malpractice attorney.
It is important to note that the statute of limitations for filing a legal malpractice claim arising from an expired statute of limitations in another case is three years, according to New York Civil Practice Law and Rules §214(6). Under most circumstances, the statute of limitations for your claim will begin running at the time when the act of malpractice occurred; or, within three years of the last date the attorney represented you in the matter complained of. For example, it is possible,to toll the statute of limitations, which means to extend the time period allowable for filing a claim, in certain cases, based on the fact of continued representation by the defendant-attorney. A ruling of New York's Appellate Division, Second Department, Frost Line Refrigeration, Inc. v. Gastwirth, Mirsky & Stein LLP, 806 NYS2d 436 (2006), found that the statute of limitations in a legal malpractice claim can be considered to begin running on the date when the plaintiff-client and defendant-attorney sign a Consent to Change Attorney form to terminate their attorney-client relationship. Another Appellate Court has stated that when the attorney-client relationship ended prior to the signing and filing of a Consent to Change Attorney form, the date the relationship ended will be the date the statute of limitations begins to run. Farage v Ehrenberg, 124 AD3d 159 (3rd Dept 2014)
Proving a Statute of Limitations Claim in New York
A legal malpractice claim involving missing the statute of limitations can be filed on the grounds that your attorney simply failed to file the claim prior to the deadline. It may also be filed on the basis of the attorney's failure to name all defendants. For example, the lawyer may have done everything necessary to sue one defendant in your case, but failed to take action to sue all parties who may be liable to you for damages, thereby costing you the full compensation that you deserve. Another scenario for this type of claim is failure to file notice of appeal prior to the deadline for appealing an unsatisfactory verdict.
Proving the claim depends on establishing that the attorney knew, or reasonably should have known, about the impending deadline and failed to take action through negligence or incompetence. Further, it is necessary to establish the nature, scope and extent of the damages that you have incurred as a result of being barred from pursing your lawsuit due to the expiration of the statute of limitations. To learn whether you have grounds to sue and begin working on your claim, contact us now for a free case evaluation.