Opinion
98 Civ. 2375 (RWS)
August 22, 2001
Robert J. Tolchin, Esq., Jaroslawicz Jaros, Attorney for Plaintiff.
Jack Babchik, Esq., Babchik Young, Attorney for Defendants Hermann, Schwartz Klinger.
Anthony P. Colavita, Esq., Scott E. Kossove, Esq., L'abbate, Balkan, Colavita Contini, Attorney for Defendants Paul E. Kerson and Leavitt, Kerson Leffler.
OPINION
Plaintiff Angelo Nobile ("Nobile") has moved pursuant to Local Rule 6.3 for reconsideration of this court's opinion of November 29, 2000 (the "November 2000 Opinion") which dismissed his malpractice complaint as time barred under the applicable statute of limitations. For the reasons set forth below, the motion for reconsideration is granted, and upon reconsideration the motion for summary judgment is granted.
Though Nobile has not expressly brought this motion pursuant to Rule 6.3, the letter of May 14, 2001 will be treated as such.
Parties and Prior Proceedings
The parties and certain of the prior proceedings are described in the November 2000 Opinion, familiarity with which is presumed. See Nobile v. Schwartz, No. 99 CIV. 2375 (RWS) (S.D.N Y Nov. 29, 2000), 2000 WL 1753036.
Nobile's complaint alleged five claims of relief based on allegations of legal malpractice for the Defendants' alleged failure to commence and continue certain lawsuits to recoup monies that Nobile allegedly lost. It was alleged, inter alia, that the Defendants failed to properly litigate an action filed with the Supreme Court of the State of New York, County of Queens (the "Supreme Court Action") and an action filed with the Surrogate's Court of the State of New York (the "Surrogate's Court Action"). Both parties moved for summary judgment. Only Nobile's claim of relief relating to the Surrogate's Court Action concerned the application of the "continuous representation doctrine" to toll the expiration of his legal malpractice claim.
The November 2000 Opinion dismissed Nobile's claims based on the statute of limitations. The limitations period expired on March 7, 1998, and that the limitations period was not tolled by the doctrine of continuous representation because there was no proof of clear indicia of an ongoing, developing and dependent relationship between the client and the attorney. This standard was derived from a New York State Appellate Division case and two district court cases. There had been no decision on point from the New York State Court of Appeals.
Shumsky v. Eisenstein, 96 N.Y.2d 164, 726 N.Y.S.2d 365 (2001), was pending before the New York State Court of Appeals shortly after Nobile had noticed an appeal of the November 200 Opinion but before it was perfected. The case dealt with the issue of tolling in the context of attorney client relationships. Contending that the Shumsky decision controls, Nobile has filed the instant motion for reconsideration. The motion was marked fully submitted on June 6, 2001.
Reconsideration is Granted and Upon Reconsideration Summary Judgment is Granted
Because the effect of the Shumsky decision could not have been, and was not, considered in the November 2000 Opinion, reconsideration is granted in order to confront the issues presented by that case.
However, Nobile's reliance on Shumsky is misplaced. In Shumsky, the plaintiffs retained the defendant/attorney to represent them in commencing an action based on breach of contract. The attorney failed to commence an action timely on behalf of the plaintiffs. After the expiration of the underlying statute of limitations, the defendant/attorney did not contact the plaintiffs and admittedly avoided them. In fact, during a formal disciplinary action, the attorney admitted that he failed to commence an action on behalf of the plaintiffs and admitted that after the statute of limitations had expired he was too embarrassed to tell his clients and avoided them. In this action, the Defendants have made no admissions to negligently handling the Surrogate's Court Action, nor any admission to having actively avoided Nobile.
Moreover, in considering the continuous representation doctrine, the Court of Appeals in Shumsky stated that in order for the doctrine to apply, there must be a "mutual understanding" by both the client and the attorney that further services were needed in connection with the specific subject matter. Shumsky, 96 N.Y.2d at 169.
Here there was no mutual understanding that further service was needed. The record before the court reveals that the co-defendants internal memorandum indicated that the plaintiff agreed to discontinue both the Supreme Court and the Surrogate's Court Actions. Although Nobile claims that he understood that further legal services were expected, the record does not evidence a "mutual understanding". Neither Schwartz nor Kerson understood that further legal services were necessary.
Finally, the Court in Shumsky held that although there was an admitted mutual understanding that further legal services were needed, the plaintiffs were nevertheless on reasonable notice that the attorney client relationship had been terminated when the defendant/attorney did not return the plaintiffs telephone calls during a one month period of time. According to the Court, the continuous representation toll ends once the client is informed or otherwise put on notice of the attorney's withdrawal. The Court stated:
Of course, even when further representation concerning the specific matter in which the attorney allegedly committed the complained of malpractice is needed and contemplated by the client, the continuous representation toll would nonetheless end once the client is informed or otherwise put on notice of the attorney's withdrawal from representation. Here, at the earliest, plaintiffs may have received reasonable notice of defendant's withdrawal from representation upon defendant's interminable failure to respond to their telephone inquiries of October 18, 1996. We thus conclude that, on these facts, defendant was continuously representing plaintiffs at least until, after his extended failure to return their telephone inquiries of October 1996, they may have been put on sufficient notice that the representation had ceased.Shumsky, 96 N.Y.2d 164, 170-71.
Here, since the October 20, 1992 meeting, Nobile has stated that he made in excess of 31 unanswered telephone calls to Schwartz. The telephone records submitted indicate that Nobile or his son made 17 of these calls after the October 20, 1992 meeting during a period of time spanning almost three years. Moreover, in his complaint, Nobile states that he had no communication with Schwartz from April 1992 to October 1997. This goes well beyond the one month of unanswered calls which the Court of Appeals determined in Shumsky put the plaintiff on sufficient notice that the legal representation had ended.
The principles articulated by the Court of Appeals in Shumsky, when applied to this case, yield the conclusion that the plaintiff was clearly on sufficient notice that the Defendants' representation had ended at least in August, 1993, when four telephone calls were placed by the plaintiff, but went unanswered.
Conclusion
Having reconsidered the November 2000 Opinion in light of Shumsky, Nobile's claims are dismissed for the reasons articulated above and in the November 2000 Opinion.