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

873
CA 13-01700
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND LINDLEY, JJ.


TOWN OF AMHERST, PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

PAUL D. WEISS, ESQ., BARTLO, HETTLER & WEISS,
POLOWITZ & SCHWACH, LLP AND WAYNE R. GRADL, ESQ.,
DEFENDANTS-RESPONDENTS.


BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

HISCOCK & BARCLAY, LLP, BUFFALO (DAVID M. HEHR OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS PAUL D. WEISS, ESQ. AND BARTLO, HETTLER &
WEISS.

FELDMAN KIEFFER, LLP, BUFFALO (CHRISTOPHER E. WILKINS OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS POLOWITZ & SCHWACH, LLP AND WAYNE R. GRADL,
ESQ.


     Appeal from an order of the Supreme Court, Erie County (Tracey A.
Bannister, J.), entered July 8, 2013. The order granted the motions
of defendants for summary judgment and dismissed the amended
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motions are denied
and the amended complaint is reinstated.

     Memorandum: Plaintiff, Town of Amherst (Town), commenced this
legal malpractice action alleging that defendants Paul D. Weiss, Esq.,
and Wayne R. Gradl, Esq., attorneys in defendant law firms, were
negligent in failing to advise the Town of the appropriate method for
appointing a hearing officer for a Civil Service Law § 75 (hereafter,
Section 75) proceeding that the Town had commenced against one of its
employees. Following the Section 75 hearing and a Town resolution
terminating the employee, the resolution had to be annulled because
the Hearing Officer had not been properly appointed by the Town Board
and, therefore, the first hearing was a nullity. The Town seeks to
recover the fees, costs and expenses related to the first hearing.

     Weiss, and his law firm, defendant Bartlo, Hettler & Weiss
(collectively, Weiss defendants), moved for summary judgment
dismissing the amended complaint against them contending, inter alia,
that the action was time-barred. Gradl, and his law firm, defendant
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                                                         CA 13-01700

Polowitz & Schwach, LLP (collectively, Gradl defendants), also moved
for summary judgment dismissing the amended complaint against them,
contending, inter alia, that the action was time-barred, and that the
Town could not maintain an action against them because the Town lacked
privity of contract with them. We conclude that Supreme Court erred
in granting defendants’ respective motions, and we therefore reverse
the order, deny the motions and reinstate the amended complaint.

     It is well settled that a cause of action for legal malpractice
accrues on the date when the malpractice was committed, regardless of
the date on which the malpractice is actually discovered (see Shumsky
v Eisenstein, 96 NY2d 164, 166; Ackerman v Price Waterhouse, 84 NY2d
535, 541; Glamm v Allen, 57 NY2d 87, 94). The parties agree that the
alleged malpractice was committed on June 26, 2001, the date the
hearing began before the improperly appointed Hearing Officer. The
statute of limitations for legal malpractice is three years (see CPLR
214 [6]) and, therefore, the statute expired on June 26, 2004 unless
it was tolled. We conclude that defendants met their initial burden
of establishing that the action was commenced after the statute of
limitations had expired (see International Electron Devices [USA] LLC
v Menter, Rudin & Trivelpiece, P.C., 71 AD3d 1512, 1512). “The burden
then shifted to [the Town] to raise a triable issue of fact whether
the statute of limitations was tolled by the continuous representation
doctrine” (id.; see Priola v Fallon, 117 AD3d 1489, 1489-1490; but see
730 J & J, LLC v Polizzotto & Polizzotto, Esqs., 69 AD3d 704, 705).

     We conclude that the Town raised a triable issue of fact whether
there were “clear indicia of an ongoing, continuous, developing, and
depend[e]nt relationship between the [Town] and [defendants,] which .
. . include[d] an attempt by [defendants] to rectify an alleged act of
malpractice” (Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505,
506-507; see International Electron Devices [USA], LLC, 71 AD3d at
1512-1513). Contrary to defendants’ contentions, the Town raised
triable issues of fact whether the continuing representation
“pertain[ed] specifically to the matter in which [defendants]
committed the alleged malpractice” (Shumsky, 96 NY2d at 168; see
International Electron Devices [USA], LLC, 71 AD3d at 1512-1513), and
whether there was “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).

     The Town first hired Weiss in early 2001 to investigate the
possibility of Section 75 charges against one of the Town’s employees.
Weiss hired Gradl to assist him. From that point on, Weiss and Gradl
performed legal work on behalf of the Town related to the Section 75
proceeding. They drafted the Section 75 charges and amended charges,
presented evidence at the improperly commenced Section 75 hearing,
prepared the resolution of the Town Board terminating the employee,
and responded to the employee’s legal challenge to the termination.
When it appeared that a second hearing was required, the Town Board
resolved to appoint Weiss “and associates . . . to prosecute” the
Section 75 charges and amended charges against the employee, i.e., to
correct the legal error resulting in the need to nullify the first
hearing and the initial determination terminating the employee.
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                                                         CA 13-01700

Defendants performed legal work on behalf of the Town by prosecuting
the Section 75 charges and amended charges at a second hearing and by
preparing the second resolution of the Town Board terminating the
employee. When the employee challenged that termination, the Town
Board resolved to retain Weiss’s firm to represent the Town at a
potential hearing pursuant to General Municipal Law § 50-h and “to
defend the Town Board’s decision” in an anticipated CPLR article 78
proceeding to be brought by the terminated employee.

     Although defendants contended that their representation was not
continuous, as evidenced by the fact that there were three separate
and distinct actions by the Town to retain them and numerous gaps in
their representation of the Town, we conclude that the Town
nevertheless raised triable issues of fact concerning continuous
representation. It is well established that “[a]n attorney-client
relationship may exist in the absence of a formal retainer agreement”
(Swalg Dev. Corp. v Gaines, 274 AD2d 385, 386; see Terio v Spodek, 63
AD3d 719, 721). Instead, such a relationship is formed by “an
explicit undertaking to perform a specific task” (Terio, 63 AD2d at
721). Here, while there were three separate and distinct retainer
agreements, we conclude that there are triable issues of fact whether
defendants were retained for separate and distinct legal proceedings
or, rather, “ongoing and developing phases of the [same] litigation”
(Muller v Sturman, 79 AD2d 482, 485, citing Siegel v Kranis, 29 AD2d
477, 480-481). We cannot say as a matter of law that all of
defendants’ acts “were not interrelated so that representation on [the
second Section 75 hearing and the subsequent CPLR article 78
proceeding were] not part of a continuing, interconnected
representation” to perform the specific task of terminating a Town
employee (Deep v Boies, 53 AD3d 948, 952). Inasmuch as “[a] question
of fact exists on this issue, . . . summary judgment is inappropriate”
(id.).

     We further conclude that there are triable issues of fact whether
the gaps in the legal services that defendants performed for the Town
were “merely . . . period[s] absent expectations, rather than . . .
period[s] when representation formally ended” (Red Zone LLC v
Cadwalader, Wickersham & Taft LLP, 2013 NY Slip Op 23468, affd 118
AD3d 581, 582). Here, as in Red Zone, the Town “immediately
return[ed] to [defendants] . . . once an issue arising from [the
alleged] malpractice [was] detected” (id.; see N&S Supply v Simmons,
305 AD2d 648, 649-650)

     Although defendants correctly contend that the continuous
representation doctrine requires that there be “ ‘continuing trust and
confidence in the relationship between the parties’ ” (Kanter v Pieri,
11 AD3d 912, 913), there are triable issues of fact whether the Town
ever lost such trust and confidence in defendants. There is no
dispute that the Town received an unsolicited letter from an attorney
suggesting that defendants had committed legal error and offering to
represent the Town in recovering the money spent as a result of that
error. There is likewise no dispute that the Town Board discussed
that letter. The Town, however, neither consulted with that attorney
nor instituted any legal malpractice action during the pendency of
                                 -4-                           873
                                                         CA 13-01700

defendants’ representation (cf. Lazzaro v Kelly, 87 AD2d 975, 976,
affd 57 NY2d 630; Schloss v Albany Med. Ctr., 278 AD2d 614, 615).
While the Town solicited a proposal from a second law firm for
representation in a subsequent phase of the Section 75 proceeding,
consultation with a second attorney for representation on the same
legal matter does not terminate the first attorney-client relationship
(see Red Zone LLC, 2013 NY Slip Op 23468). The Town, after discussing
other legal options, opted against retaining other counsel, thereby
“evidenc[ing] a desire to continue the relationship [with defendants]
and to continue with [its] case” (Bucaro v Keegan, Keegan, Hecker &
Tully, 126 Misc 2d 590, 593).

      Additionally, we agree with the Town that there are triable
issues of fact whether there was “actual privity of contract between
the [Town and Gradl] or a relationship so close as to approach that of
privity” (Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby,
Palmer & Wood, 80 NY2d 377, 382, rearg denied 81 NY2d 955). “Viewed
as a whole, we conclude that the evidence submitted in opposition to
the [Gradl defendants’] motion raises a triable issue of fact whether
there was an attorney-client relationship between [the Town] and
[Gradl]” (Bloom v Hensel, 59 AD3d 1026, 1027; see Shanley v Welch, 31
AD3d 1127, 1128; see generally Prudential Ins. Co. of Am., 80 NY2d at
382).




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
