FKB’s Rachel Aghassi and Salvatore Lapetina successfully obtained Pre-Answer dismissal of a Complaint alleging legal malpractice, breach of fiduciary duty, and breach of contract filed in the Supreme Court, Westchester County against FKB’s client arising out of FKB’s client’s representation of trust beneficiaries in a related Surrogate’s Court Matter.

In the Surrogate’s Matter, the plaintiffs, beneficiaries of a trust, claimed the trustee misappropriated trust funds for over two decades, and sought removal of the trustee and return of trust property. At some point during litigation in the Surrogate’s Matter, a dispute arose between plaintiffs and FKB’s client, and FKB’s client withdrew as counsel. The plaintiffs thereafter commenced a legal malpractice action in New York Supreme Court, Westchester County, against FKB’s client seeking the value of the misappropriated trust funds for failure to remove the trustee.

In its CPLR 3211(a)(1), (a)(3), (a)(5), and (a)(7) motion to dismiss the Complaint, FKB successfully argued, among other things, that the plaintiffs’ claim of legal malpractice was time barred by the three-year statute of limitations governing legal malpractice actions. In dismissing the Complaint, the Court (Justice David S. Zuckerman), agreed with FKB’s argument that the attorney-client relationship was not tolled by the continuous representation doctrine, nor did the date of the formal substitution of counsel end the attorney-client relationship for statute of limitations purposes. The Court agreed with FKB’s argument that FKB’s client’s motion to withdraw as counsel, four months prior to formal substitution of counsel, “evince[d] the end date of the attorney-client relationship,” and FKB’s client “established their prima facie entitlement to judgment as a matter of law dismissing the legal malpractice claim” on statute of limitations grounds. The Court rejected plaintiffs’ argument that the Governor’s Executive Orders during the Covid-19 pandemic tolled the statute of limitations. The Court further dismissed the breach of fiduciary duty and breach of contract claims for the same reasons.

If you have any questions about this decision, or the defense in general, please contact Rachel Aghassi and Salvatore Lapetina.