Legal Malpractice

Tolling or Abatement of Statutes in Legal Malpractice

By (Andrew Lavoott Bluestone)

Plaintiff has a right to sue target attorney, and then, for strategic reasons, agrees to put the case aside for the time being.  Plaintiff and target attorney reach a stand-still agreement, but the question of tolling or abatement of  the statute of limitations remains.  How is the statute of limitations calculated in this situation?

In  CMI Capital Mkt. Inv., LLC v Buchanan Ingersoll & Rooney P.C., 2009 NY Slip Op 31708(u) we see Justice Tolub's definitions and answer.  In that case, the statute of limitations was tolled, not abated.  Tolling is the suspension of the running of a statute for a period of time.  Abatement is the ending of the statute, allowing for it to start running again, from the beginning.

Both parties wanted to "temporarily suspend the running of the statute to await the outcome of [other] litigation."  Abatement would "nullify the period of the statute of limitations and for it to run anew at the expiration of the parties agreement."

The court then goes on to set forth how one decides whether an agreement is ambiguous:

"Despite CMI's best arguments, contractual language does not become ambiguous simply because the parties to the litigation argue different interpretations. Riverside S. Planning Corp.,60 AD3d 61."

Full post as published by New York Attorney Malpractice Blog on August 05, 2009 (boomark / email).