Chang v Yi Lin 2024 NY Slip Op 33338(U) September 20, 2024 Supreme Court, New York County Docket Number: Index No. 161222/2023 Judge: Mary V. Rosado documents what is a not unusual situation. In a divorce setting, one of the parties often think that a single attorney is representing them as well as their spouse. While it is sometimes true that the attorney is representing both, it is often a mistake made by the less monied spouse. Here, the wife’s unilateral belief that the attorney represented her as well was rejected by the Court.
“This is a legal malpractice action. Plaintiff alleges Defendant represented her and her former husband in various real estate, immigration, and business-related matters (see NYSCEF Doc. 1 at ,i 3). Plaintiff alleges Defendant represented her former husband in a divorce proceeding (id. at ,i 15). Plaintiff further alleges that she consulted with Defendant prior to the divorce proceeding about her desire to divorce her husband. During the divorce proceeding, she believed Defendant was representing both her and her husband (id. at ,i 16). Plaintiff was allegedly never told she should seek independent counsel (id. at ,i 19). Allegedly, it was only after consulting with a separate attorney that Plaintiff learned Defendant made numerous misrepresentations to Plaintiff during the divorce proceedings, and here were assets omitted from the parties’ divorce agreement (id. at ,r,r 44-45). Plaintiff also alleges that pursuant to a 2020 telephone call from Defendant, she learned her name was not taken off certain marital liabilities.”
“A defendant who moves to dismiss based on the statute of limitations bears the initial burden of proving that the time to sue has expired (Lebedev v Blavatnik, 144 AD3d 24 [1st Dept 2022]). CPLR § 214(6) provides for a three-year period of limitations for legal malpractice claims. As held by the Court of Appeals, most legal malpractice claims accrue from the day an actionable injury occurs, even if the aggrieved party is ignorant of the wrong (McCoy v Feinman, 99 NY2d 295 [2002]; see also Flintlock Const. Servs., LLC v Rubin, Fiorella & Friedman, LLP, 188 AD3d 530 [1st Dept 2020]). Here, the alleged wrongs occurred during a divorce proceeding which was concluded in 2015 (see Zorn v Gilbert, 8 NY3d 933 [2007] [malpractice claim accrued, at the latest, when a judgment of divorce was entered in the underlying action]). The Complaint was not filed until November 15, 2023. Therefore, the claims related to the divorce are untimely. Although Plaintiff is correct the continuous representation doctrine tolls the statute of limitations, this doctrine is only applicable where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim (McCoy, supra at 306). Here, there are no facts alleging any representation as to the divorce proceedings after 2015, aside from an isolated telephone call in 2020. However, it is only alleged that on the November 2020 telephone call, Defendant called Plaintiff to have Plaintiffs name removed from an SBA loan and the deeds and mortgage for various properties in Pennsylvania. This telephone call, which is the only timely legal interaction between Plaintiff and Defendant, is by itself insufficient to state a legal malpractice claim. This isolated phone call does not constitute a “mutual understanding” to invoke the continuous representation doctrine, especially where the documentary evidence in the form of Court filings specifically state that Defendant was only representing Plaintiffs former husband in the proceedings (see also Farina v Katsandonis, P. C., 197 AD3d 1033 [1st Dept 2021] [“Plaintiff failed to allege sufficient facts showing there was a mutual understanding of the need for further representation”]). Simply, there is no clear indicia of an ongoing, continuous, and dependent relationship between the client and attorney related to the divorce proceeding. There is only a conclusory and self-serving affidavit of Plaintiff which fails to list any conversations or ongoing legal work between Plaintiff and Defendant after the divorce proceeding and prior to the November 2020 telephone related to the underlying divorce proceeding (see NYSCEF Doc. 13). Therefore, the legal malpractice cause of action predicated on Defendant’s alleged representation of Plaintiff in her divorce proceeding is dismissed as time barred. While the Court does not condone Defendant’s actions in representing Plaintiffs former husband in a divorce proceeding despite what appears to be a conflict of interest, the Court cannot toll the statute of limitations given the facts and allegations pled.”