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Current Developments in the Commercial Divisions of the
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Posted: April 5, 2016

Client’s Death Severs Attorney-Client Relationship, Ending Any Tolling

On March 24, 2016, Justice Ramos of the New York County Commercial Division issued a decision in Davis v. Cohen & Gresser LLP, 2016 NY Slip Op. 50417(U), finding malpractice claims time-barred.

In Davis, the plaintiff representative of an estate brought a legal malpractice action against the defendant law firm, which had represented the decedent (“CRA”) “and CRA’s son, Luke Allen, who was also CRA’s guardian prior to CRA’s death, alleging that the defendant “committed legal malpractice by allowing the statute of limitations to run on RICO claims against CRA’s former attorneys.”

The court granted the defendant’s motion to dismiss, finding that the claims were time-barred, explaining:

The death of a client severs the attorney-client relationship. Thus, a legal malpractice claim commenced more than three years after the client’s death is untimely as a matter of law. CRA died on March 9, 2011, and thus, the latest time that the malpractice claim could have accrued is at that time, which is more than three years before the instant action was commenced, on August 12, 2014. Because [the defendant] has demonstrated that the claim is untimely, the burden shifts to plaintiff to establish an exception to the applicable statute of limitations period.

Plaintiff unpersuasively argues that the continuous representation doctrine tolls the limitations period. The toll ceases to be operative when the representation in the particular matter comes to an end. As stated supra, the death of CRA in March 2011 severed the attorney-client relationship with [the defendant] and thus, the doctrine of continuous representation cannot apply.

(Internal quotations and citations omitted) (emphasis added).

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