Legal Malpractice

Statute of Limitations in Matrimonial Legal Malpractice

By (Andrew Lavoott Bluestone)

In Kvetnaya v. Tylo the Appellate Division, 2d Department reiterated an oft discussed rule, determining the date when a matrimonial legal malpractice statute of limitations starts tp run.  The base rule is that the statute of limitations starts to run from the date of the mistake, unless there is continuous representation tolling.  Here, the AD found that there was a tolling until at least the referee's decision was filed.

"The cause of action to recover damages for legal malpractice accrued when the defendant allegedly failed to advise the plaintiff of her equitable distribution rights and failed to disclose a conflict of interest (see Venturella-Ferretti v Kinzler, 306 AD2d 465, 466; see also Zorn v Gilbert, 8 NY3d 933, 934; McCoy v Feinman, 99 NY2d 295, 305). However, the defendant's representation of the plaintiff ended, at the earliest, on November 5, 2001, when the special referee signed the judgment of divorce. The doctrine of continuous representation tolled the statute of limitations at least until that date (see Sommers v Cohen, 14 AD3d 691, 692-693; Gaslow v Phillips Nizer Benjamin Krim & Ballon, 286 AD2d 703, 706; see also Shumsky v Eisenstein, 96 NY2d at 169-170)."

Full post as published by New York Attorney Malpractice Blog on March 20, 2008 (boomark / email).