Clark
v.
Jacobson

Appellate Division of the Supreme Court of New York, Second DepartmentMar 14, 1994
202 A.D.2d 466 (N.Y. App. Div. 1994)
202 A.D.2d 466609 N.Y.S.2d 46

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March 14, 1994

Appeal from the Supreme Court, Nassau County (McCabe, J.).


Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing the second and third causes of action, and substituting therefor a provision denying that branch of the defendants' motion which was for summary judgment dismissing the second and third causes of action; as so modified, the order is affirmed, with costs to the plaintiff.

A review of the record reveals sufficient evidence, including a letter from one of the defendant attorneys to the plaintiff captioned "Re: Alston v. The County of Nassau and The Metropolitan Suburban Bus Authority," to raise a triable issue of fact with respect to whether or not the defendants had agreed to represent the plaintiff in a personal injury action (see, Denkensohn v. Davenport, 130 A.D.2d 860).

The plaintiff's first cause of action alleging legal malpractice was properly dismissed by the trial court as time-barred. The plaintiff failed to make any showing of "continuing trust and confidence in the relationship between the parties," which is a predicate to a tolling of the limitations period pursuant to the continuing representation doctrine (Luk Lamellen U. Kupplungbau GmbH v. Lerner, 166 A.D.2d 505, 507).

We find that an issue of fact has been presented with respect to whether or not, in the exercise of reasonable diligence, the plaintiff should have discovered sooner than she did the defendants' alleged fraudulent concealment of their failure to timely file a notice of claim. Thus, the plaintiff's second and third causes of action should not have been dismissed on a motion for summary judgment (see, Trepuk v. Frank, 44 N.Y.2d 723). Mangano, P.J., Balletta, O'Brien, Hart and Florio, JJ., concur.