Shumsky v. Eisenstein

In Shumsky v. Eisenstein, 96 NY2d 164 [2001] the Court denied the defendant attorney's motion for summary judgment to dismiss the legal malpractice cause of action, noting that continuous representation "does not automatically come to an end where, as here, pursuant to a retainer agreement, an attorney and client both explicitly anticipate continued representation" (id.) The plaintiffs in Shumsky retained the defendant, an attorney, in 1993 for the purpose of suing a home inspector for breach of contract. Defendant subsequently avoided plaintiffs and failed to keep them informed about the case's status. On December 5, 1997, the plaintiffs commenced a legal malpractice action against defendant. Defendant moved for summary judgment dismissing the complaint arguing that since the malpractice occurred in March 1994, when defendant failed to commence the action against the home inspector, the plaintiffs' action was barred by the SOL (id. at 165-166). The "Supreme Court denied defendant's motion, concluding that the continuous representation doctrine tolled the limitations period at least until defendant finally revealed, in 1997, that he had failed to timely commence plaintiffs' action against the home inspector" (id. at 166). The Second Department reversed the Supreme Court, and the Court of Appeals reversed the Second Department, explaining: The continuous representation doctrine, like the continuous treatment rule, its counterpart with respect to medical malpractice claims, "recognizes that a person seeking professional assistance has a right to repose confidence in the professional's ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered" . . . . The doctrine also appreciates the client's dilemma if required to sue the attorney while the latter's representation on the matter at issue is ongoing. (Id. at 167.) The Court of Appeals further explained that the plaintiffs retained defendant "for the sole purpose of pursuing their specific contract claim. Thus, upon signing the retainer agreement, plaintiffs and the defendant reasonably intended that their professional relationship of trust and confidence - focused entirely upon the very matter in which the alleged malpractice was committed - would continue" (id. at 170).