Legal Malpractice

Still a 6 year Statute of Limitations in a Near-Legal Malpractice Case?

By (Andrew Lavoott Bluestone)

For those with any knowledge of the history of the statute of limitations in legal malpractice, there was once a time in which a three year s/l for tort and a six year s/l for contract existed.  Under the Court of Appeals in Santulli it was permissible.  In response the Legislature passed CPLR 214-6:

" an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort; "

Now, however, we see a quasi-legal malpractice cause of action with a 6 year s/l:  disgorgement of excessive fees.  In Loria v Cerniglia ;  2010 NY Slip Op 00112 ;  Decided on January 5, 2010
Appellate Division, Second Department  the court reversed and remanded to Supreme Court for trial on the issue of excessive fees even when it decided that the s/l for legal malpractice had passed.
 

"The Supreme Court properly granted that branch of the defendant's motion which was to dismiss the first cause of action, alleging legal malpractice, as time-barred. The action was commenced on August 14, 2008, and the three-year statute of limitations (see CPLR 214[6]) began to run on August 12, 2005, when the plaintiff signed a consent to change attorney form, relieving the defendant as counsel in the underlying action (see Frost Line Refrig., Inc. v Gastwirth, Mirsky & Stein, LLP, 25 AD3d 532, 532-533; Sommers v Cohen, 14 AD3d 691, 692; Marro v Handwerker, Marchelos & Gayner, 1 AD3d 488, 488; Daniels v Lebit, 299 AD2d 310, 310).

However, the second cause of action, alleging that the defendant charged an excessive fee, was not duplicative of the first cause of action, and should not have been dismissed (see Boglia v Greenberg, 63 AD3d 973, 976). "

Full post as published by New York Attorney Malpractice Blog on January 13, 2010 (boomark / email).