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Invoking the Continuous Representation Toll for Legal Malpractice Claims – Two Recent New York Decisions and Pennsylvania Comparison

Shutterstock_217222567 - business office - sunsetOne of the most effective and often-litigated defenses to professional malpractice cases is the expiration of the statute of limitations. Under New York law, a legal malpractice claim accrues – and the three year statute of limitations begins to run - on the date the alleged malpractice was committed. See Landow v. Snow Becker Krauss, P.C., 111 A.D.3d 795 (2d Dept 2013); Hahn v. Dewey & LeBoeuf Litigation Trust, 143 A.D.3d 547 (1st Dept 2016). To invoke the tolling of the statute of limitations pursuant to the “continuous representation” doctrine, a plaintiff is required to establish, by sufficient evidentiary facts, “an ongoing, continuous, developing and dependent relationship between the attorney” or a “mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.” See Matter of Merker, 18 A.D.332, 332-333 (1st Dept 2005); Hasty Hills Stables, Inc. v. Dorfman, Lynch, Knoebel & Conway, 52 A.D.3d 566 (2d Dept. 2008).  Recurring use of a professional’s services does not constitute continuous representation if the later services are unrelated to the original services. See Pellati v. Lite & Lite, 290 A.D.2d 544, 736 N.Y.S.2d 419 (2d Dept. 2002); Giarratano v. Silver, 46 A.D.3d 1053, 847 N.Y.S.2d 698 (3d Dept. 2007).

While the continuous representation doctrine is a frequently litigated issue in New York and a majority of other jurisdictions, Pennsylvania has declined to adopt the continuing representation rule as a toll to the statute of limitations. See Namani v. Bezark, Lerner, & DeVirgilis, P.C., 160 A.3d 244 (Pa. Super. Ct. January 05, 2017), citing Glenbrook Leasing Co. v. Beausang, 839 A.3d 437, 441-442 (Pa. Super. 2003). In Pennsylvania, similar to New York, the trigger for the accrual of its two-year statute of limitations period is the occurrence of a breach of duty, not the realization of actual loss. See Wachovia Bank, N.A. v. Gerretti, 935 A.2d 565, 570-571 (Pa. Super. 2007).

Defense practitioners in New York should cite to the recent First Department case Knobel v. Wei Group, LLP, 2018 NY Slip Op 02292 (Decided on April 3, 2018) for the proposition that substantive legal work directly related to the malpractice claim is required to invoke the contentious representation doctrine. In Knobel, the statute of limitations began to run when the plaintiff sent the defendant attorney an e-mail directing him “to cease all [] work” and contacted the court regarding his desire to appear pro se. Attempting to invoke the continuous representation doctrine, the plaintiff argued that certain billing invoices regarding the defendant attorney’s subsequent communications with the court, client, and subsequent counsel were sufficient to toll the statute of limitations.   However, the Court held that these invoices did not indicate that the defendant performed any “substantive legal work or provided any legal advice on the matters which plaintiffs allege defendants committed malpractice” and thus did not serve toll the statute of limitations.

The First Department also recently held in Estate of Smulewicz v. Meltzer, Lippe, Goldstein & Breitstone, LLP, 2018 NY Slip Op 02722 (Decided on April 19, 2018) that to withstand a motion to dismiss in which a meritorious statute of limitations defense is asserted, a legal malpractice plaintiff must show that a sufficient basis exists to conclude that more discovery would lead to evidence of continuous representation. In Estate of Smulewicz, the defendant attorney established its entitlement to dismissal by submitting evidence that the action was commenced well beyond the three-year limitation period, notwithstanding the plaintiffs’ argument that the limitation period was tolled by the decedent’s alleged dementia. The court also rejected plaintiffs’ argument that further discovery should be permitted regarding additional continuous representation by defendant, holding that “[t]he mere hope” that discovery may reveal continuous representation did not warrant the denial of a motion to dismiss.


New York practitioners will no doubt continue to litigate whether a law firm’s alleged continuous representation serves to toll the three year statute of limitations. To successfully invoke the continuous representation doctrine, a legal malpractice plaintiff must present sufficient evidence of substantive legal work or advice directly related to the specific subject matter underlying the malpractice claim. Attorney communications which do not amount to substantive legal work are not sufficient to toll the statute. Further, to withstand a motion to dismiss based on the need for further discovery, a reasonable basis must exist to conclude that additional discovery would lead to evidence of additional continuous representation.


*This article was prepared by Andrew Jones and Aaron Barham of the New York City-based law firm of Furman Kornfeld & Brennan LLP. Andrew and Aaron work as part of a team of 15 lawyers and paralegals devoted to the defense of attorneys and other professionals in malpractice and disciplinary matters, as well as the defense of construction and personal-injury accidents. For more information about the above topic or the authors, please visit:

We trust that the above article was useful and thought-provoking; however, please note that it is intended as a general guide and opinion only, not a complete analysis of the issues addressed, and readers should always seek specific legal guidance on particular matters.

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