        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

135
CA 11-01472
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.


R. BROOKS ASSOCIATES, INC., PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

HARTER SECREST & EMERY LLP, DEFENDANT-APPELLANT.


GEIGER AND ROTHENBERG, LLP, ROCHESTER (DAVID ROTHENBERG OF COUNSEL),
FOR DEFENDANT-APPELLANT.

ROEMER WALLENS GOLD & MINEAUX, LLP, ALBANY (MATTHEW J. KELLY OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Wayne County (John B.
Nesbitt, A.J.), entered April 4, 2011 in a legal malpractice action.
The order denied defendant’s motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint is dismissed.

     Memorandum: Defendant appeals from an order denying its motion
for summary judgment dismissing the complaint in this legal
malpractice action. We agree with defendant that the action is time-
barred, and we therefore reverse the order, grant the motion and
dismiss the complaint.

     Pursuant to CPLR 214 (6), an action to recover damages for legal
malpractice must be commenced within three years of accrual. A legal
“malpractice claim accrues ‘when all the facts necessary to the cause
of action have occurred and an injured party can obtain relief in
court’ ” (Guerra Press, Inc. v Campbell & Parlato, LLP, 17 AD3d 1031,
1032, quoting Ackerman v Price Waterhouse, 84 NY2d 535, 541). Here,
defendant met its initial burden on the motion by submitting evidence
establishing that the alleged malpractice occurred, at the latest, on
August 3, 1999 and thus that the action was time-barred when commenced
on May 4, 2004.

     In opposition to the motion, plaintiff failed to raise a triable
issue of fact whether the continuous representation doctrine applied
to toll the statute of limitations (see generally Zuckerman v City of
New York, 49 NY2d 557, 562). Pursuant to that doctrine, the running
of the limitations period is tolled during the time that an attorney
continues to represent a client on the matter that is the subject of
the malpractice action because the client must be able “to repose
                                 -2-                           135
                                                         CA 11-01472

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” (Williamson
v PricewaterhouseCoopers LLP, 9 NY3d 1, 9 [internal quotation marks
omitted]). The doctrine tolls the limitations period “where there is
a mutual understanding of the need for further representation on the
specific subject matter underlying the malpractice claim” (McCoy v
Feinman, 99 NY2d 295, 306), and “ ‘where the continuing representation
pertains specifically to [that] matter’ ” (International Electron
Devices [USA] LLC v Menter, Rudin & Trivelpiece, P.C., 71 AD3d 1512,
1513, quoting Shumsky v Eisenstein, 96 NY2d 164, 168; see Chicago Tit.
Ins. Co. v Mazula, 47 AD3d 999, 1000).

     Here, although plaintiff submitted bills from defendant for legal
work performed within three years of the commencement of the action,
it failed to establish that the bills were for work on the matter that
was the subject of the alleged malpractice. Indeed, the evidence
submitted by defendant established that the last work that it
performed for plaintiff with respect to the subject of the alleged
malpractice occurred in January or February 2001, and plaintiff failed
to submit evidence raising a triable issue of fact whether the work
performed after that time was related to the alleged malpractice. We
therefore conclude that the evidence submitted by plaintiff
established no “more than simply an extended general relationship
between the [parties]” (Zaref v Berk & Michaels, 192 AD2d 346, 348).
Such evidence is insufficient to raise a triable issue of fact whether
“(1) plaintiff[] and defendant . . . were acutely aware of the need
for further representation[ concerning the subject of the alleged
malpractice,] i.e., they had a mutual understanding to that effect[],
and (2) plaintiff[ was] under the impression that defendant . . . was
actively addressing [its] legal needs” with respect to the subject of
the alleged malpractice (Williamson, 9 NY3d at 10). Consequently, the
doctrine of continuous representation does not apply, and Supreme
Court erred in denying the motion (see Gotay v Brietbart, 12 NY3d 894;
see generally Young v New York City Health & Hosps. Corp., 91 NY2d
291, 295-297).

     Defendant’s remaining contentions are moot in light of our
determination.




Entered:   January 31, 2012                     Frances E. Cafarell
                                                Clerk of the Court
