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Case Law Database

Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. MISSING
Regular Panel Decision

Shumsky v. Eisenstein

Plaintiffs David Shumsky and Marjorie Scheiber sued their attorney, Paul Eisenstein, for legal malpractice for failing to timely file a breach of contract action against a home inspector. The key issue was whether the continuous representation doctrine tolled the three-year Statute of Limitations, CPLR 214(6), which had been amended in 1996. The Supreme Court initially applied the doctrine, but the Appellate Division reversed, dismissing the complaint. This Court, however, reversed the Appellate Division, concluding that the continuous representation doctrine was applicable because plaintiffs reasonably believed the attorney-client relationship was ongoing regarding the specific matter, thereby making their malpractice action timely.

Legal MalpracticeStatute of LimitationsContinuous Representation DoctrineAttorney NegligenceProfessional ResponsibilityCPLR 214(6) AmendmentContract BreachAppellate ReviewTollingClient-Attorney Relationship
References
16
Case No. 2021 NY Slip Op 01112 [191 AD3d 1142]
Regular Panel Decision
Feb 18, 2021

Lavelle-Tomko v. Aswad & Ingraham

Plaintiff sued her former attorneys, Aswad & Ingraham, for legal malpractice, alleging they failed to clarify the meaning of "surrender" in a 2007 settlement agreement which later led to her losing her real estate license again. The Supreme Court granted summary judgment to defendants, finding the malpractice action time-barred. Plaintiff appealed, arguing the continuous representation doctrine tolled the statute of limitations. The Appellate Division, Third Department, found that questions of fact existed regarding the continuous representation doctrine, thus reversing the Supreme Court's summary judgment dismissal based on the statute of limitations. The court also denied plaintiff's cross-motion to amend her complaint and for equitable estoppel but granted dismissal of defendants' CPLR article 16 affirmative defense.

Legal MalpracticeStatute of LimitationsContinuous Representation DoctrineEquitable EstoppelSummary JudgmentAppellate ReviewReal Estate LicenseSettlement AgreementBroome CountyCPLR
References
36
Case No. 2016 NY Slip Op 26230
Regular Panel Decision
Jul 25, 2016

Jefferson Apts., Inc. v. Mauceri

This case addresses the application of the "continuous representation" doctrine to toll the statute of limitations in an action alleging accountant or auditor malpractice. Plaintiff, The Jefferson Apartments, Inc., sued Steven J. Mauceri for various causes including professional malpractice, aiding and abetting tort, negligent misrepresentation, breach of contract, and fraud, related to alleged mismanagement and unauthorized withdrawals of funds by co-defendants Tribor Management Inc. and Maryann Caputo. Mauceri moved to dismiss these claims based on documentary evidence, failure to state a cause of action, and the statute of limitations. The court granted dismissal for professional malpractice claims related to transactions prior to June 17, 2012, negligent misrepresentation, and breach of contract, but denied dismissal for professional malpractice concerning 2011 financials, aiding and abetting, and fraud, citing the continuous representation doctrine and sufficient pleading.

Accountant MalpracticeStatute of LimitationsContinuous Representation DoctrineProfessional NegligenceBreach of Contract ClaimFraud ClaimMotion to DismissCPLR 3211CPLR 214Financial Audits
References
67
Case No. MISSING
Regular Panel Decision

Ogle v. State

This case involves a claimant who filed for medical malpractice and negligence against the State of New York, alleging that delayed treatment for tuberculosis during his incarceration led to paraplegia. The Court of Claims initially denied the State's motion to dismiss, applying the continuous treatment doctrine. On appeal, the higher court reversed this decision, asserting that the doctrine's application requires a relevant relationship between treating physicians or a continuous relationship between the claimant and initial physicians, rather than merely all providers being state employees. The court found questions of fact regarding the relevant relationship between the medical facilities involved (Ogdensburg, Samaritan, Upstate) that need to be determined by the Court of Claims. Therefore, the order of the Court of Claims was reversed, and the matter was remitted for further proceedings to determine the applicability of the continuous treatment doctrine.

medical malpracticenegligencecontinuous treatment doctrinetuberculosisspinal cord injuryparaplegiacorrectional facility inmatestatute of limitationsquestions of factappellate review
References
14
Case No. MISSING
Regular Panel Decision

Doe v. Roe

The defendant attorney unlawfully collected a fee of $10,750 from the plaintiff client for representation in an unemployment benefits claim. The New York State Unemployment Insurance Appeal Board (the Board) subsequently ordered the attorney to make restitution of $5,356, which he failed to do. Consequently, the plaintiff client initiated a small claims action to enforce the Board's order, seeking the court's jurisdictional maximum of $3,000. The court rejected the attorney's statute of limitations defense, citing multiple reasons including issue preclusion and the continuous representation doctrine. Ultimately, the court awarded the plaintiff client a $3,000 judgment and referred the attorney to the Grievance Committee for apparent violations of the Code of Professional Responsibility.

Statute of LimitationsUnemployment InsuranceAttorney FeesRestitutionIssue PreclusionCollateral EstoppelSmall Claims CourtProfessional MisconductCode of Professional ResponsibilityContinuous Representation Doctrine
References
15
Case No. 2018 NY Slip Op 02434 [160 AD3d 475]
Regular Panel Decision
Apr 10, 2018

Encalada v. McCarthy, Chachanover & Rosado, LLP

Plaintiff, Jorge Encalada, suffered an injury in a 2001 work accident and subsequently sought legal representation from the defendant law firm, McCarthy, Chachanover & Rosado, LLP. The firm represented Encalada in a workers' compensation case until 2004. In 2007, Encalada filed a legal malpractice suit against the defendant, alleging negligence in failing to file a timely notice of claim and a personal injury lawsuit against municipal entities. The Supreme Court initially granted the defendant's motion for summary judgment, ruling the malpractice claim was time-barred by the three-year statute of limitations. However, the Appellate Division, First Department, reversed this decision. The appellate court found a triable issue of fact existed regarding whether the continuous representation doctrine tolled the statute of limitations, thereby potentially making the plaintiff's claim timely. The court also clarified that a credibility dispute regarding the plaintiff's initial conversation with the defendant was a matter for the fact-finder, not appropriate for resolution at the summary judgment stage.

Legal MalpracticeStatute of LimitationsContinuous Representation DoctrineSummary JudgmentWorkers' CompensationAppellate DivisionPersonal Injury ClaimCredibility IssueTollingLaw Firm Negligence
References
5
Case No. MISSING
Regular Panel Decision

Spicer v. Beaman Bottling Co.

This case addresses the applicability of the "continuing violation doctrine" to a sexual harassment claim filed under the Tennessee Human Rights Act. Plaintiff Judy G. Spicer alleged sexual harassment and retaliatory discharge by her supervisor, Don Hollingshead, and employer, Beaman Bottling Company. The Supreme Court adopted the continuing violation doctrine, allowing a plaintiff to challenge a series of discriminatory acts if one falls within the one-year statute of limitations. However, the Court found that all acts of sexual harassment against Spicer occurred more than one year before she filed suit, and the alleged retaliatory actions did not constitute a continuing violation or discrimination based on gender. Therefore, the plaintiff's action was deemed time-barred, and the Court of Appeals' judgment affirming dismissal was affirmed.

Sexual HarassmentEmployment DiscriminationContinuing Violation DoctrineStatute of LimitationsTennessee Human Rights ActRetaliatory DischargeHostile Work EnvironmentSupervisory LiabilityWorkplace DiscriminationAppellate Review
References
19
Case No. 14-09-00335-CV
Regular Panel Decision
Nov 23, 2010

Debra Markwardt v. Texas Industries, Inc.

Debra Markwardt appealed a summary judgment in favor of Texas Industries, Inc. (TXI) in her suit for trespass, nuisance, negligence, and gross negligence, alleging damages arising from emissions from TXI’s cement plant. The trial court granted summary judgment, concluding her claims were barred by the statute of limitations. Markwardt argued the nuisance was temporary, the discovery rule applied, and the continuing-tort and fraudulent-concealment doctrines should avoid the limitations bar. The Court of Appeals affirmed the judgment, finding Markwardt alleged a permanent nuisance, knew or should have known of her claims more than two years before filing suit, and that neither the continuing-tort nor fraudulent-concealment doctrines were applicable.

NuisanceTrespassNegligenceGross NegligenceStatute of LimitationsDiscovery RulePermanent NuisanceTemporary NuisanceFraudulent ConcealmentContinuing Tort
References
28
Case No. 03-05-00781-CV
Regular Panel Decision
May 21, 2009

Alegria Olivarez v. University of Texas at Austin

Alegria Olivarez sued her former employer, the University of Texas at Austin (UT-Austin), alleging discrimination based on national origin and retaliation. UT-Austin filed a plea to the jurisdiction, asserting Olivarez's suit was barred because she did not file an administrative complaint with the Texas Commission on Human Rights within the 180-day statute of limitations. The trial court granted the plea, and Olivarez appealed. She contended that the limitations period began upon receipt of her termination letter and that her TCHR filing was timely under the doctrine of continuing violation. The appellate court affirmed the trial court's dismissal, concluding that the only alleged discriminatory act within the 180-day period (a reprimand for a cluttered desk) was not an actionable adverse employment action, and the continuing violation doctrine did not apply. The court also clarified that termination does not qualify as a predicate act for a hostile work environment claim.

Employment DiscriminationNational Origin DiscriminationRetaliationStatute of LimitationsPlea to the JurisdictionContinuing Violation DoctrineHostile Work EnvironmentAdministrative ComplaintTexas Labor CodeAppellate Review
References
28
Case No. MISSING
Regular Panel Decision

McCoy v. Feinman

This appeal addresses the statute of limitations for a legal malpractice claim involving a Qualified Domestic Relations Order (QDRO) under ERISA. Plaintiff sued her former attorneys for allegedly failing to secure preretirement death benefits from her ex-husband's employee benefit plan during their divorce. The Supreme Court and Appellate Division ruled the action time-barred. The Court of Appeals affirmed, holding that the malpractice claim accrued no later than the divorce judgment entry in 1988, as the stipulation and judgment did not provide for these benefits. The Court also rejected the application of the continuous representation doctrine.

Legal MalpracticeStatute of LimitationsERISAQualified Domestic Relations Order (QDRO)Divorce ProceedingsPension BenefitsPreretirement Death BenefitsContinuous Representation DoctrineAccrual DateEquitable Distribution
References
31
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