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October 2012

New York Legal Malpractice Team Wins on Appeal

Robert Modica and Ryan Sestack of Gordon & Rees's New York office obtain appellate victory in legal malpractice action.  Plaintiffs sued our client, a law firm, for legal malpractice, breach of contract, and breach of fiduciary duty for, among other things, failure to advise them about the effects of the Deficit Reduction Act of 2005 on estate and asset protection. Gordon & Rees filed a motion to dismiss all claims as barred by the three-year statute of limitations. Plaintiffs opposed the motion, disputing that the limitations period expired and contending that the doctrine of continuous representation tolled the statutory period because of communication between the law firm and a husband of one of the plaintiffs. The trial court denied the motion, holding that the law firm failed to show both the expiration of the limitations period and the inapplicability of the continuous representation doctrine. 

On appeal, Mr. Modica and Mr. Sestack argued that the law firm unquestionably established that the limitations period elapsed, that the trial court erroneously shifted the burden of proof to the law firm to establish that the doctrine of continuous representation did not apply, and that plaintiffs failed to satisfy their burden of establishing the applicability of the doctrine. The appellate court agreed, unanimously reversing the decision of the trial court. The appellate court found that the plaintiffs failed to establish either that “an ongoing, developing, and dependent relationship” existed between them and the law firm or that “a mutual understanding of the need for further legal representation” existed. In so finding, the court thereby held that plaintiffs failed to satisfy their burden of establishing the applicability of the continuous representation doctrine and dismissed all claims.     
 

Robert Modica
Ryan J. Sestack



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