Legal Malpractice

What is the Statute of Limitiations in Legal Malpractice?

By (Andrew Lavoott Bluestone)

The question of whether there is a different statute of limitations for fraud or breach of contact when dealing with attorneys often arises.  After all, it is a 6 year statute everywhere, is it not?  The short answer is "no" and the longer answer is that the legislature gave attorneys special protection.  After the Court of Appeals permitted a 6 year statute for breach of contract against attorneys, the legislature closed the "loophole".  Now the rule is bright-line: 3 years.

In Tsafatinos v Lee David Auerbach, P.C. ; 2011 NY Slip Op 00503 ; Decided on January 25, 2011 Appellate Division, Second Department  we see the outcome. 

" The Supreme Court properly granted the defendants' separate motions pursuant to CPLR 3211(a) to dismiss the complaint. The statute of limitations applicable to actions sounding in legal malpractice is three years "regardless of whether the underlying theory is based in contract or tort" (CPLR 214[6]). The plaintiffs' causes of action sounding in breach of contract and breach of fiduciary duty are based on the same facts underlying their legal malpractice cause of action and do not allege distinct damages. Accordingly, they are duplicative of the legal malpractice cause of action (see Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 199; Town of N. Hempstead v Winston & Strawn, LLP, 28 AD3d 746, 749; Mecca v Shang, 258 AD2d 569), and likewise subject to the three-year limitations period (see Harris v Kahn, Hoffman, Nonenmacher & Hochman, LLP, 59 AD3d 390; Melendez v Bernstein, 29 AD3d 872).

The limitations period begins to run from the time of the alleged malpractice, not from the time of discovery (see Shumsky v Eisenstein, 96 NY2d 164, 166; 730 J & J, LLC v Polizzotto & Polizzotto, Esqs., 69 AD3d 704)"

 

Full post as published by New York Attorney Malpractice Blog on January 31, 2011 (boomark / email).