FKB wins in New York State Court of Appeals, successfully reversing Appellate Division Decision and obtaining summary judgment.
6/26/2009

After the Appellate Division, First Department upheld the New York County Supreme Court's denial of FKB's motion for summary judgment in a legal malpractice action, the New York State Court of Appeals reversed the decision, granted FKB's motion for summary judgment, and dismissed plaintiff's claim in its entirety, with costs.

This legal malpractice action stemmed from alleged complications with the plaintiff's August 1977 birth. The plaintiff's mother retained a now defunct law firm to commence a medical malpractice action on the plaintiff's behalf in early 1978. After a prolonged period of inactivity in the medical malpractice action, the plaintiff's mother substituted another law firm as counsel in 1993. FKB's client was an associate at the second law firm and, along with two other associates, formed his own law firm (referred to as "firm #1"), which became the plaintiff's attorneys in 1994.

In early 1998, FKB's client's partner at firm #1 met with the plaintiff and her father to inform them that the firm would no longer be able to represent the plaintiff on her medical malpractice claims. After firm #1 dissolved in late 1998, FKB's client became a member of another law firm (referred to as "firm #2). Although FKB's client proposed to bring the plaintiff's medical malpractice action with him to the firm #2, a partner discovered that an index number had never been purchased for the medical malpractice action. Accordingly, firm #2 decided not to represent the plaintiff. FKB's client's partner at firm #2 met with the plaintiff and her father on January 28, 1999 and advised them that firm #2 would not undertake to represent the plaintiff in a medical malpractice action, in response to which the plaintiff's father made a request for a return of the underlying file. Notably, FKB's client's partner at firm #2 sent the plaintiff a follow-up closing letter on February 22, 1999, which memorialized what had been discussed at the meeting and contained the following boilerplate language: "Your file remains in our possession. In the event you require the whole or any portion thereof, we are available to provide you with same."

On January 31, 2002, the plaintiff commenced this legal malpractice action due to FKB's client's failure to file the medical malpractice action. After discovery, FKB moved for summary judgment to dismiss the plaintiff's Complaint on the ground that the plaintiff commenced the legal malpractice action on January 31, 2002, more than three years after the January 28, 1999 meeting with FKB's client's partner at firm #2 and about four years after the meeting with FKB's client's former partner at firm #1. While the New York County Supreme Court initially granted FKB's summary judgment motion, dismissing the action against FKB's client on the ground that the plaintiff's claim was time-barred, the Court later vacated the decision following the plaintiff's motion to reargue. In denying summary judgment, the New York County Supreme Court relied on two theories that the plaintiff never advanced nor even suggested, to wit, that the plaintiff was not aware of the relationship between FKB's client and firm #2, and that the February 22, 1999 follow-up closing letter created an issue of fact concerning what occurred at the January 28, 1999 meeting.

FKB appealed from the Order of the New York County Supreme Court below on the grounds that, inter alia: 1) the plaintiff was advised in early 1998 that FKB's client's former law firm, firm #1, would no longer be able to represent her on her medical malpractice claims; and 2) to the extent an attorney-client relationship remained in existence between FKB's client and the plaintiff after early 1998, such relationship was terminated on January 28, 1999, when FKB's client's partner at firm #2 advised the plaintiff that firm #2 would not represent her in a medical malpractice action.

After the Appellate Division, First Department denied FKB's appeal, FKB successfully moved for leave to appeal to the New York State Court of Appeals. The Court of Appeals reversed the Appellate Division, holding that the plaintiff's legal malpractice action was not brought within the applicable three-year statute of limitations period and that FKB established as a matter of law that the continuous representation doctrine did not apply to toll the statute of limitations period.

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