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NY: Continuous Representation Tolls Statute of Limitations Against Predecessor Law Firm

New Kayak Pool Corp, v. Kavinoky Cook LLP, 74 A.D.3d 1852, 902 N.Y.S.2d 497 (App.Div 4th Dpt. 2010)

NY: Underlying Trademark Infringement

Student Contributor: Richard Sadowski

Facts: Plaintiff brought action for legal malpractice alleging that the defendant failed to ascertain the existence of insurance coverage in the plaintiff’s underlying trademark infringement action. The attorney, then a partner at the first law firm, began representing the plaintiff in 1999. The attorney later joined, a second law firm and executed a consent to change attorney form in June 2003, substituting the second firm in place of the first,  as plaintiffs’ attorneys of record. That underlying action settled in February 2004 and the instant malpractice action commenced in January 2007.

Issue: Is the malpractice action against the original law firm of record barred by the statute of limitations where that firm was replaced more than three years before the commencement of an action?

Ruling: No.

“[T]he statute of limitations was tolled by the doctrine of continuous representation during the time that the same attorney represented plaintiffs in the underlying action.”

Lesson: The original law firm can not escape liability in a legal malpractice action by alleging a statue of limitations violation even if the attorney on record switches firms and executes a change of attorney form. The statue of limitations period is tolled while the underlying action continues with the relocated attorney at his new firm. 

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Posted in: Intellectual Property, Litigation, New York, Statute of Limitations