Legal Malpractice — Continuous Representation Doctrine Not Satisfied by Corporate Transaction and Subsequent Litigation Over that Transaction — Also, Impact of Representation by Other Counsel

From Pandozy v. Robert J. Gumenick, P.C., 2008 U.S. Dist. LEXIS 41440 (S.D.N.Y. May 23, 2008):

[B]ecause the initial representation with respect to the apartment sale involved a different subject matter than the appeal of the specific performance action, the continuous representation doctrine is not applicable. This conclusion is supported by a consistent line of New York cases involving similar circumstances. Judge Crotty summarized one of the predominant New York state cases, Goldman v. Akin, Gump, Strauss, Hauer & Feld, LLP, 11 Misc.3d 1077(A), 816 N.Y.S.2d 695 (Sup. Ct. 2006), as follows:

In Goldman, the plaintiffs were general partners of seven limited partnerships which owned storage facilities. They hired Akin, Gump to represent them in the sale of the facilities when several limited partners expressed objections to the initial terms of the proposed sale. Two dissenting limited partnerships commenced an action over the eventual sale, and Akin Gump represented plaintiffs in the ensuing arbitration. At the time of the initial engagement, Akin, Gump explicitly informed the plaintiffs that "they were available if any further litigation occurred...." Nevertheless, the New York Supreme Court ruled that the representation in the sale and the representation in the litigation were separate matters. Accordingly, the plaintiff could not claim tolling under the continuous representation doctrine.

Offshore Express, Inc. v. Milbank, Tweed, Hadley, & McCloy, No. 03 Civ. 4260 (PAC), 2007 WL 760419, at *3 (S.D.N.Y. Mar. 13, 2007) (internal citations omitted). Thus, the rule in New York is that "a corporate transaction and litigation in some way related to that transaction should not be considered the same specific matter, absent unique circumstances. Id. at *4. Here, we find that no such circumstances exist, especially since plaintiff was represented by other lawyers before re-hiring defendant. See Docster v. Levene, No. 03 Civ. 1193 (FJS), 2005 WL 1388899, at *5 (N.D.N.Y. June 8, 2005)("[O]nce a client consults with another attorney with respect to the matter in which his initial attorney represented him, continuous representation clearly ends because, at that point, the client is able to question the attorney's actions and to pursue remedies for perceived wrongs."). Thus, plaintiff's reliance on the continuous representation doctrine fails and the case must be dismissed as untimely.

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