Professional Negligence Law Reporter

A New York appellate court held that the doctrine of continuous representation did not toll a legal malpractice suit against a law firm that provided continuing estate administration work as part of an ongoing professional relationship.

When successful businessman Benedict Pace died, his sister, Carol Gbur, was appointed executor of his estate. She retained Morritt Hock & Hamroff LLP (MHH) to administer the estate, including handling valuation issues and selling the estate’s assets. After Pace’s companies were sold in 2007, his beneficiaries challenged Gbur’s stewardship of the estate. This led to a global settlement that included reservation of the option to bring a malpractice claim against MHH for its negligence in administering the estate, particularly its alleged failure to properly valuate key assets for sale. Gbur’s attorney-client relationship with MHH was terminated in February 2015.

In November 2018, Pace’s daughter, as successor executor, sued MHH and its attorneys for malpractice and unjust enrichment. The trial court granted the defendants’ motion to dismiss.

Affirming, the appellate court agreed with the trial court’s conclusion that the plaintiffs had failed to show that there was an issue of fact as to whether the plaintiff’s malpractice claim was timely filed based on the application of the continuous representation doctrine’s tolling provision. Citing case law, the court found that the continuous representation doctrine does not apply based on the mere existence of an ongoing professional relationship. Only where the particular course of representation giving rise to the alleged malpractice is ongoing will the continuous representation doctrine apply, the court said. Here, although the defendants had provided continuing estate administration work until 2015, the plaintiff does not allege that the defendants had provided continuing representation regarding the sale of the estate’s assets—the basis of the malpractice claims—until that date, the court said. Absent such an assertion, the court found, the plaintiff’s malpractice claims were untimely.

Citation: Pace v. Horowitz, 2021 WL 247702 (N.Y. App. Div. Jan. 26, 2021).