Jan. 28 Klass presents “RPAPL Section 993: Uniform Partition of Heirs Property Act” for the General Practice Section and Committee on Professional Discipline CLE program

Man and woman arm in arm, with a young child, standing in front of a beautiful house.

Richard A. Klass will be presenting a lecture on “RPAPL Section 993: Uniform Partition of Heirs Property Act” for the General Practice Section and Committee on Professional Discipline CLE program in New York City.

The program will be held on Tuesday, January 28, 2020 from 9:00 am – 1:00 pm with registration beginning at 8:30 am This program will take place during the 143rd NYSBA Annual Meeting and Exposition.

Registration for the program is available at www.nysba.org/AM2020GEN. Please feel free to tell your networks about this program.

In addition, Richard Klass has written a new book in his series “Your Court Street Lawyer’s Quick Reference Guide” on this subject. It is called Hug of War Instead of Tug of War: RPAPL Section 993: Uniform Partition of Heirs Property Act. It will soon be available for download from his website at http://www.courtstreetlaw.com/publications/books/.

R. A. Klass
Your Court Street Lawyer

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Brandeis Society hosts annual luncheon for Chanukah

Published in the Brooklyn Daily Eagle
December 18, 2019

by Rob Abruzzese

Men and women in business attire posing for photo. From left: Hon. Katherine Levine, Hon. Ellen Spodek, Richard Klass, Hon. Jeffrey Sunshine, Hon. Anne Swern, Hon. Miriam Cyrulnik, Doron Leiby, Jeffrey Miller and Hon. Esther Morgenstern. Photo by Rob Abruzzese.
From left: Hon. Katherine Levine, Hon. Ellen Spodek, Richard Klass, Hon. Jeffrey Sunshine, Hon. Anne Swern, Hon. Miriam Cyrulnik, Doron Leiby, Jeffrey Miller and Hon. Esther Morgenstern.
Photo by Rob Abruzzese.

“The Brooklyn Brandeis Society held its annual Chanukah luncheon and membership party in Brooklyn Heights on Monday as members gathered together to share latkes and donuts while a pair of rabbis shared stories of their common history….

Two men in business attire, posing for photo. Todd Sandler, director of the Brooklyn Jewish National Fund, on left, and Richard Klass on the right. Photo by Rob Abruzzese.
Todd Sandler, director of the Brooklyn Jewish National Fund, on left, and Richard Klass on the right.
Photo by Rob Abruzzese.

R. A. Klass
Your Court Street Lawyer

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Client may claim that the statute of limitations for legal malpractice has not been triggered

It is important for an attorney to withdraw from an action once the attorney has terminated the attorney-client relationship. If not, then the client may claim that the statute of limitations for legal malpractice has not been triggered, as decided in Courtney v McDonald, 176 AD3d 645 [1st Dept 2019]:

Scales of justice illustrating article about legal malpractice.

The first cause of action in plaintiffs’ complaint alleges legal malpractice with respect to defendants representation of plaintiffs in two underlying actions—the 304 W 18th Street matter and the 175 W 12th Street matter. Contrary to defendants’ argument, the malpractice cause of action with respect to the 175 W 12th Street matter is not time-barred by the three-year statute of limitations applicable to legal malpractice claims (CPLR 214 [6]). Defendants failed to demonstrate that the attorney-client relationship ceased to exist within three years of August 28, 2017, the date plaintiffs filed this action. Although defendants sent a letter, dated August 7, 2014, unilaterally terminating their representation of plaintiffs, they failed to move to withdraw from representation in the foreclosure action (see CPLR 321 [b]) until more than a year after sending the subject letter. Accordingly, to the extent plaintiffs’ first cause of action concerns alleged legal malpractice by defendants in their representation of plaintiffs in the matter concerning 175 W 12th Street, the motion to dismiss that cause of action was properly denied.

R. A. Klass
Your Court Street Lawyer

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Be mindful of New York’s statute of limitations pertaining to legal malpractice actions

Soloway v Kane Kessler, PC, 168 AD3d 407 [1st Dept 2019] serves as a good reminder to be mindful of New York’s statute of limitations pertaining to legal malpractice actions.

“ The court correctly found the complaint time-barred under CPLR 202, New York’s “ borrowing statute, ” which requires a claim to be timely under both the New York limitations period and that of the jurisdiction where the claim is alleged to have arisen (Kat House Prods., LLC v Paul, Hastings, Janofsky & Walker, LLP, 71 AD3d 580 [1st Dept 2010]).

Plaintiff, a New Jersey resident, alleged legal malpractice in connection with defendants’ representation of him for numerous real estate transactions, a cause of action which has a three year statute of limitations in New York (CPLR 214 [6]), and a six year limitations period in New Jersey (NJ Stat Ann § 2A:14-1). The latest that the alleged malpractice could have occurred was February 7, 2013, the date set for closing on the last of the real estate matters. Because plaintiff commenced the action on October 28, 2016, more than three years later, it was correctly dismissed as untimely. “

R. A. Klass
Your Court Street Lawyer

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…client’s allegations were previously addressed in a prior matter.

In Knox v Aronson, Mayefsky & Sloan, LLP, 2018 NY Slip Op 09030 [1st Dept Dec. 27, 2018], the court dismissed a legal malpractice case where the client’s allegations were previously addressed in a prior matter.  The court held:

Supreme Court properly dismissed plaintiff’s complaint as against FBK, since the only claim asserted, a legal malpractice claim, is barred by the doctrine of res judicata (see Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 [2005] ).  Plaintiff’s legal malpractice claim is based on the same conduct that was the basis of the counterclaim previously dismissed by Supreme Court Westchester County.  Res judicata bars all claims “ arising out of the same transaction or series of transactions … even if based upon different theories or if seeking a different remedy ” (Jumax Assoc. v. 350 Cabrini Owners Corp., 110 A.D.3d 622, 623, 973 N.Y.S.2d 631 [1st Dept. 2013] [internal quotation marks omitted], lv denied 23 N.Y.3d 907, 2014 WL 2922240 [2014]).  Contrary to plaintiff’s contention, the dismissal in the Westchester action was on the merits.  The order addressed the merits of the counterclaim, dismissing it on the basis of the settlement and the custody decision in the matrimonial action (see Plaza PH2001 LLC v. Plaza Residential Owner LP, 98 A.D.3d 89, 98, 947 N.Y.S.2d 498 [1st Dept. 2012] ).

R. A. Klass
Your Court Street Lawyer

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Statute of Limitations for Causes of Action Alleging Legal Malpractice

The Second Department, in Potenza v Giaimo, 165 AD3d 1186, 1187 [2d Dept 2018], dismissed a client’s legal malpractice action against his attorney based upon the statute of limitations. The court held:

The statute of limitations for causes of action alleging legal malpractice is three years (see CPLR 214[6]; Alizio v. Ruskin Moscou Faltischek, P.C., 126 A.D.3d 733, 735, 5 N.Y.S.3d 252). A cause of action to recover damages for legal malpractice accrues when the malpractice is committed (see Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 726 N.Y.S.2d 365, 750 N.E.2d 67). However, pursuant to the doctrine of continuous representation, the limitations period is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates (see Shumsky v. Eisenstein, 96 N.Y.2d at 167–168, 726 N.Y.S.2d 365, 750 N.E.2d 67; Aqua–Trol Corp. v. Wilentz, Goldman & Spitzer, P.A., 144 A.D.3d 956, 957, 42 N.Y.S.3d 56). For the continuous representation doctrine to apply, “ there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice ” (Luk Lamellen U. Kupplungbau GmbH v. Lerner, 166 A.D.2d 505, 506–507, 560 N.Y.S.2d 787).

R. A. Klass
Your Court Street Lawyer

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A party must be mindful of the applicable statute of limitations

When bringing an action, a party must be mindful of the applicable statute of limitations.

Recently, the Second Department in King Tower Realty Corp. v G & G Funding Corp., 163 AD3d 541, 543 [2d Dept 2018] held:

“ ‘ On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a defendant must establish, prima facie, that the time within which to sue has expired. Once that showing has been made, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period ’ ” (Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1085-1086 [2016], quoting Tsafatinos v Law Off. of Sanford F. Young, P.C., 121 AD3d 969, 969 [2014]; see Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 734-735 [2015]; Landow v Snow Becker Krauss, P.C., 111 AD3d 795, 796 [2013]). An action to recover damages for legal malpractice must be commenced within three years of accrual (see CPLR 214 [6]; McCoy v Feinman, 99 NY2d 295, 301 [2002]; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1086; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d at 735; Farage v Ehrenberg, 124 AD3d 159, 163 [2014]; Landow v Snow Becker Krauss, P.C., 111 AD3d at 796). “ A legal malpractice claim accrues ‘when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court ’ ” (McCoy v Feinman, 99 NY2d at 301, quoting Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994]; see Farage v Ehrenberg, 124 AD3d at 164). “ In most cases, this accrual time is measured from the day an actionable injury occurs, ‘ even if the aggrieved party is then ignorant of the wrong or injury ’ ” (McCoy v Feinman, 99 NY2d at 301, quoting Ackerman v Price Waterhouse, 84 NY2d at 541). “ A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered ” (Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d at 735; see McCoy v Feinman, 99 NY2d at 301; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1086; Farage v Ehrenberg, 124 AD3d at 164; Landow v Snow Becker Krauss, P.C., 111 AD3d at 796). The continuous representation doctrine serves to toll the statute of limitations and render timely an otherwise time-barred cause of action for legal malpractice, but “ only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim ” (McCoy v Feinman, 99 NY2d at 306; see Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d at 735).

R. A. Klass
Your Court Street Lawyer

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…Applicable to the particular matter in which malpractice is claimed

The statute of limitations in legal malpractice cases can be tolled when there has been continuous representation of the client by the attorney. However, it is applicable only to the particular matter in which malpractice is claimed.

See, Davis v Cohen & Gresser, LLP, 160 AD3d 484, 486 [1st Dept 2018], in which the court held:

“ the continuous representation doctrine does not apply where there is only a vague “ ongoing representation ” (Johnson v. Proskauer Rose LLP, 129 A.D.3d 59, 68, 9 N.Y.S.3d 201 [1st Dept. 2015] ). For the doctrine to apply, the representation must be specifically related to the subject matter underlying the malpractice claim, and there must be a mutual understanding of need for further services in connection with that same subject matter (see Shumsky, 96 N.Y.2d at 168, 726 N.Y.S.2d 365, 750 N.E.2d 67; see also CLP Leasing, 12 A.D.3d at 227, 784 N.Y.S.2d 535). ”

– R. A. Klass
Your Court Street Lawyer

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Issue of fact concerning the continuous representation doctrine

…issue of fact concerning the continuous representation doctrine…

In an action brought by a client against his law firm, the appellate court reversed the granting of the law firm’s motion for summary judgment based upon an issue of fact concerning the continuous representation doctrine.

Under the continuous representation doctrine, a person seeking professional assistance is placed in a difficult position if required to sue his or her attorney while the attorney continues to represent them on a particular legal matter (Shumsky v. Eisenstein, 96 N.Y.2d 164, 167–168, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001] ). Accordingly, the doctrine tolls the running of the statute of limitations on malpractice claims until the ongoing representation is completed (id.). However, the application of this doctrine is limited “to the course of representation concerning a specific legal matter,” and is not applicable to the client’s “continuing general relationship with a lawyer … involving only routine contact for miscellaneous legal representation … unrelated to the matter upon which the allegations of malpractice are predicated” (id. at 168, 726 N.Y.S.2d 365, 750 N.E.2d 67). The record presents an issue of fact as to whether defendant continuously represented plaintiff in connection with a personal injury claim based on the accident, such as to toll the statute of limitations during that time (see Glamm v. Allen, 57 N.Y.2d 87, 94, 453 N.Y.S.2d 674, 439 N.E.2d 390 [1982]; Waggoner v. Caruso, 68 A.D.3d 1, 6–7, 886 N.Y.S.2d 368 [1st Dept. 2009] ). Encalada v McCarthy, Chachanover & Rosado, LLP, 160 AD3d 475 [1st Dept 2018].

R. A. Klass
Your Court Street Lawyer

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Statute of Limitations and Mortgage Foreclosure

Plaintiff may not maintain an action to foreclose the mortgage upon Defendants’ real property if the action is barred by the statute of limitations specified in CPLR 213(4). When a mortgage lender elects to accelerate a defaulted loan and declares the full principal balance immediately due and payable, then the six-year limitation period on a foreclosure action begins to run. See Lavin v. Elmakiss, 302 A.D.2d 638, 639, 754 N.Y.S.2d 741, 743 [3d Dept. 2003]; CPLR Section 213(4). As stated in Loiacono v. Goldberg,240 AD2d 476, 477 [2 Dept. 1997], “Once the mortgage debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire mortgage debt.” Loiacono v. Goldberg, 240 A.D.2d 476, 277 [2d Dept. 1977]; see Zinker v. Makler, 298 A.D.2d 516, 517 [2d. Dept. 2002]. The statute of limitations for an action to foreclose a mortgage is six years [CPLR 213(4)].

In accordance with well-settled case law, once a defendant has met his prima facie burden of proof that Plaintiff’s time to sue has expired, the burden now shifts to Plaintiff to aver evidentiary facts establishing that the action was timely commenced or falls within an exception to the statutory period. Assad v. City of New York, 238 A.D.2d 456 [2d Dept. 1997]; see alsoSavarese v Shatz, 273 AD2d 219, 220 [2d Dept 2000].

Ordinarily, the Statute of Limitations on a mortgage loan would be six years. However, there are two ways in which the statute may be tolled. The first is found in General Obligations Law Section 17-101, where a signed written acknowledgment of an existing debt that contains nothing inconsistent with an intention on the part of the debtor to pay it will toll the Statute of Limitations and start it running anew. See Lew Morris Demolition Co. v. Board of Educ. of City of N.Y., 40 N.Y.2d 516, 520-521, 387 N.Y.S.2d 409, 411, 355 N.E.2d 369, 371; see, alsoConnecticut Trust & Safe Deposit Co. v. Wead, 172 N.Y. 497, 500, 65 N.E. 261, 501; Curtiss-Wright Corp. v. Intercontinent Corp., 277 App.Div. 13, 16-17, 97 N.Y.S.2d 678, 680; Siegel, New York Practice, s 50). The second way to either toll or restart the statute of limitations was developed by the common law, and is based on a partial payment of the debt before or after the statute has expired. However, in order to toll the statute or start it running anew, it must be shown that the payment was of a portion of an admitted debt under circumstances amounting to a clearly demonstrated intention to pay the balance. See Crow v. Gleason, 141 N.Y. 489, 493, 36 N.E. 497, 498; Matter of Fitch, 270 App.Div. 227, 237-238, 58 N.Y.S.2d 833, 840. Bernstein v Kaplan, 67 AD2d 897, 898 [2d Dept 1979].

The fact that a homeowner listed a mortgage debt in his bankruptcy petition is not a promise to pay the debt. In fact, the Bankruptcy Court, in discharging the defendant, did not endorse any position other than the fact that the note or mortgage was his valid debts. Saini v Cinelli Enterprises Inc., 289 AD2d 770, 773 [3d Dept 2001].

R. A. Klass
Your Court Street Lawyer

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