Summary
Holding that the dispositive issue was not outside consultation but a “history of litigation” between the attorney and client
Summary of this case from Red Zone LLC v. Cadwalader, Wickersham & Taft LLPOpinion
March 6, 1995
Appeal from the Supreme Court, Nassau County (Saladino, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The plaintiffs, as sellers, retained the defendant attorneys to draft a contract of sale of real estate, which the plaintiffs allege was to contain a 180-day time limitation for both bond financing and cash purchase options. The contract of sale was executed on February 2, 1982. After 180 days, the plaintiffs took the position that the contract had terminated. The prospective purchasers, however, took the position that the 180-day time limit did not apply to the all-cash option. In 1983, they sued the plaintiffs for specific performance on the ground that they were ready, willing, and able to exercise the all-cash option.
Also in 1983, the defendant Joseph Nurnberg sued the plaintiffs Abraham J. Rodolitz and Anna Rodolitz to recover legal fees due for services in an unrelated matter, and in 1984 a judgment was entered in that action in favor of Nurnberg for the principal sum of $250,000. Thereafter, on or about December 27, 1985, the plaintiffs commenced an action against the defendants to recover damages for legal malpractice allegedly arising out of the defendants' failure to reduce to writing the plaintiffs' agreement with the real estate broker who introduced them to the prospective purchasers. The plaintiffs assert that despite this history of litigation between the parties, the defendants' representation of them continued, since the defendant Ronald L. Nurnberg "continued consultations" with the plaintiffs with respect to their defense of the specific performance action.
By judgment dated May 21, 1990, the prospective purchasers prevailed against the plaintiffs in the action for specific performance, and that determination was upheld by this Court on November 16, 1992 (see, Exclusive Envelope Corp. v. Tal-Spons Corp., 187 A.D.2d 556). The instant action to recover damages for legal malpractice and breach of contract based upon the allegedly negligent drafting of the real estate contract executed in February 1982 was commenced in 1993.
The law is well-settled that an action to recover damages for legal malpractice accrues when the malpractice is committed (see, Glamm v. Allen, 57 N.Y.2d 87; Anderson Co. v. Devine, 202 A.D.2d 382; Johnston v. Raskin, 193 A.D.2d 786, 787; Pittelli v Schulman, 128 A.D.2d 600). Similarly, a cause of action to recover damages for breach of contract accrues when the breach occurs (see, Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402). Pursuant to the continuous representation theory, the Statute of Limitations for causes of action sounding in legal malpractice is tolled until the attorney's ongoing representation of the plaintiff in connection with the matter in question is completed (see, Weiss v. Manfredi, 83 N.Y.2d 974; Glamm v. Allen, supra, at 94; Johnston v. Raskin, supra; see also, Siegel v. Kranis, 29 A.D.2d 477).
In the instant case, in light of the history of litigation between the parties, it is clear that the defendants' ongoing representation of the plaintiffs terminated more than seven years before the instant action was commenced. The defendant Ronald L. Nurnberg's consultations with the plaintiffs and their new attorneys regarding pending litigation over the meaning of the contract drafted by him cannot be equated with ongoing representation (see, Luk Lamellen U. Kupplungbau GmbH v. Lerner, 166 A.D.2d 505, 506-507).
The plaintiffs' assertion that their causes of action only accrued when their damages were adjudicated is legally unsupportable (see, Ackerman v. Price Waterhouse, 84 N.Y.2d 535).
Accordingly, the instant action is time-barred (see, Santulli v. Englert, Reilly McHugh, 78 N.Y.2d 700). Bracken, J.P., Rosenblatt, Lawrence, Krausman and Goldstein, JJ., concur.