Shumsky v. Eisenstein

96 N.Y. 2d 164 (2001)

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Nature of the Case

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Facts

In April 1993, Ps retained D for the specific purpose of commencing an action against Charles Fleischer, a home inspector, for breach of contract. D avoided Ps' inquiries regarding the status of the matter. In response to a formal disciplinary grievance Ps filed against him in September of 1997, D admitted that he had failed to commence the action before the Statute of Limitations had expired in March of 1994 and stated that, after two years, when Ps finally contacted him, he was 'too embarrassed to discuss the matter and put it off.' On December 5, 1997, Ps commenced this legal malpractice action against D, sounding in both contract and tort. D moved for summary judgment on the ground that Ps' action was barred by the three-year Statute of Limitations, since the malpractice occurred in March 1994 when defendant failed to commence the action against Fleischer. The Supreme Court denied Ds motion, concluding that the continuous representation doctrine tolled the limitations period at least until D finally revealed, in 1997, that he had failed to timely commence Ps' action against the home inspector. The Appellate Division reversed and dismissed the complaint. The court held that, on these facts, the doctrine of continuous representation was not applicable to toll the limitations period; the contract action was never filed and D did nothing to lull Ps into believing that the action was proceeding. Ps appealed.