The statute of limitations in legal malpractice cases is often thought of as impervious. Plaintiffs are given three years to commence an action for legal malpractice after a wrong is committed. The statute commences at the mistaken act or departure, not when it is discovered. It does not matter whether plaintiff knows of the malpractice; there is no discovery delay of its onset. The only dispensation is that commencement may be tolled pursuant to continuous representation. The rules for continuous representation are very strict, and require an agreement on the need for more work, actual continuing work on the case and a continuing relationship of trust and confidence between the attorney and client in order to toll the running of the three-year statute under CPLR 214(6). Many legal malpractice cases are dismissed on the statute of limitations.
In this unique setting the three-year statute does not change whether the case is described as tort or breach of contract. Shumsky v. Eisenstein, 96 NY2d 164 (2001). Where once there was a six-year statute for contract legal malpractice claims, the Legislature specified that all professional negligence claims are subject to a single three-year period. Whether described as a “tort” or a “contract” it’s the same three years. The only difference between tort and contract is the nature of the damages sought. CPLR 214(6); SearsRoebuck & Co. v. Enco Assocs., 43 NY2d 389 (1977); Santulli v. Englert, 78 NY2d 700 (1992). Whether the allegations are called “fraud,” “breach of fiduciary duty,” or any other name, if they arise from professional representation of the client by the attorney they are subject to a three-year statute. Ulico Cas.Co v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1 (1st Dept. 2008); Melendez v. Bernstein, 29 AD3d 872 (2d Dept. 2006).
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