2 No. 64
David Shumsky et al.,
Appellants,
v.
Paul Eisenstein,
Respondent.
_________________________________________________________________
2001 NY Int. 51
May 10, 2001
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Submitted by Eric A. Klein, for appellants.
Submitted by Paul Eisenstein, for respondent.
_________________________________________________________________
LEVINE, J.:
In April 1993, plaintiffs David Shumsky and Marjorie Scheiber retained
defendant Paul Eisenstein, an attorney, for the specific purpose of
commencing an action against Charles Fleischer, a home inspector, for
breach of contract. Defendant did not contact plaintiffs to keep them
informed and, in fact, avoided plaintiffs' inquiries regarding the
status of the matter.
In response to a formal disciplinary grievance plaintiffs filed
against him in September of 1997, defendant admitted that he had
failed to commence the action against Fleischer before the Statute of
Limitations had expired in March of 1994 and stated that, after two
years, when his clients finally contacted him, he was "too embarrassed
to discuss the matter and put it off."(1) Thereafter, on December
5, 1997, plaintiffs commenced this legal malpractice action against
defendant, sounding in both contract and tort. Defendant moved for
summary judgment dismissing the complaint on the ground that
plaintiffs' action was barred by the three-year Statute of
Limitations, since the malpractice occurred in March 1994 when
defendant failed to commence the action against Fleischer. Supreme
Court denied defendant's motion, concluding that the continuous
representation doctrine tolled the limitations period at least until
defendant finally revealed, in 1997, that he had failed to timely
commence plaintiffs' action against the home inspector.
The Appellate Division reversed, granted defendant's motion and
SNIPPETS:
David Shumsky et al., Appellants, v. Paul Eisenstein, Respondent.
In April 1993, plaintiffs David Shumsky and Marjorie Scheiber retained defendant Paul
Defendant did not contact plaintiffs to keep them informed and, in fact, avoided plaintiffs'
Defendant moved for summary judgment dismissing the complaint on the ground that plaintiffs'
Supreme Court denied defendant's motion, concluding that the continuous representation
The Appellate Division reversed, granted defendant's motion and dismissed the complaint.
An action to recover damages for legal malpractice accrues when the malpractice is committed
The Court determined that, for those cases not immediately time-barred as of the 1996
Because plaintiffs did not commence this action until December 5, 1997, just over three
The continuous representation doctrine, like the continuous treatment rule, its counterpart
Thus, the doctrine is not applicable to a client's or patient's continuing general
In concluding that the doctrine did not apply to toll the limitations period, the Appellate
Looking to the underlying purpose behind the continuous treatment doctrine -- to avoid
ing Allende v New York City Health & Hosps.
By a parity of reasoning, "continuous representation" in the context of a legal malpractice
Indeed, even in his letter to the Grievance Committee, defendant acknowledged that his
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