Legal Malpractice

A Pro-se Legal Malpractice Case Falters

By (Andrew Lavoott Bluestone)

Tsafatinos v Wilson Elser Moskowitz Edelman & Dicker, LLP ;2010 NY Slip Op 06085 ;decided on July 13, 2010 ;Appellate Division, Second Department is short on details as to how and why the legal malpractice case was filed on a date the Appellate Division determined to be too late.  The rules, however, are clear:
 

"To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the Statute of Limitations, a defendant bears the initial burden of establishing prima facie that the time in which to sue has expired" (Savarese v Shatz, 273 AD2d 219, 220; see Morris v Gianelli, 71 AD3d 965, 967). Here, the defendants demonstrated that the plaintiffs' cause of action to recover damages for legal malpractice accrued no later than July 2005, more than three years before the commencement of the instant action in August 2008 (see CPLR 214[6]; McCoy v Feinman, 99 NY2d 295, 301; Nickel v Goldsmith & Tortora, Attorneys at Law, P.C., 57 AD3d 496). Thereafter, "the burden shifted to the plaintiffs to aver evidentiary facts establishing that the case falls within an exception to the Statute of Limitations" (Savarese v Shatz, 273 AD2d at 220 [internal quotation marks omitted]). Contrary to the plaintiffs' contention, they failed to establish that the statute of limitations was tolled by the continuous representation doctrine (see McCoy v Feinman, 99 NY2d at 306; cf. Shumsky v Eisenstein, 96 NY2d 164, 168). "
 

Full post as published by New York Attorney Malpractice Blog on July 15, 2010 (boomark / email).