Town of Amherst v. Weiss

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This appeal addresses the tolling of the statute of limitations in a legal malpractice action under the continuous representation doctrine. This appeal also considers whether an attorney who was hired by the Defendant-attorney to assist in the matter leading to the alleged malpractice had sufficient privity of contract with the client to be amenable to suit for legal malpractice as well. The Plaintiff, the Town of Amherst (the “Town”), hired the Defendant-attorney, Weiss, to investigate bringing disciplinary charges against one of the Town’s employees. Weiss then hired Gladl (together, “Defendants”), another attorney, to assist in bringing the charges. The two attorneys did work for the Town, including drafting the charges against the employee and presenting evidence on behalf of the Town at a disciplinary hearing before the Town Board. The hearing resulted in the termination of the employee, and the Defendants drafted the Town Board’s resolution to terminate the employee.

The employee challenged the termination, alleging that the Town Board had not properly appointed the hearing officer. The resolution and the first hearing were annulled, and a second hearing was required. The Town again retained the Defendants to represent the Town in the second hearing in order to, as stated by the court, “correct the legal error resulting in the need to nullify the first hearing and initial . . . terminat[ion of] the employee.” Town of Amherst v. Weiss, 120 A.D.3d 1550, 993 N.Y.S.2d 396, 399 (4th Dep’t. 2013). The Defendants prosecuted the employee at the second hearing and drafted another resolution. The employee challenged the second termination as well, and the Town again retained the Defendants to represent the Town and defend its decision to terminate the employee in a proceeding the Town expected the employee to initiate.

The Town sued the Defendants to recover the costs and expenses relating to the first annulled hearing, alleging that the Defendants were negligent in not advising the Town regarding proper appointment of the hearing officer. Defendant Weiss moved for summary judgment to dismiss the complaint, arguing that the action was time-barred by the three year statute of limitations for legal malpractice. Defendant Gladl moved to dismiss for the same reason, and also argued that he did not have sufficient privity of contract with the Town to be amenable to suit for legal malpractice. The Supreme Court granted Defendants’ motions for summary judgment. The Town appealed, and the Appellate Division, Fourth Department, reversed, holding that triable issues of fact existed as to whether the statute of limitations was tolled by continuing representation of the Town by the Defendants.

The court held that the Defendants’ doing work for the Town relating to the second hearing and resolution raised triable issues of fact as to whether that representation “‘pertain[ed] specifically to the matter in which [Defendants] committed the alleged malpractice[,]’” and therefore whether there existed continuous representation, tolling the statute of limitations. Weiss, 993 N.Y.S.3d at 399 (quoting Shumsky v. Eisenstein, 726 N.Y.S.2d 365, 369 (2001)). Had representation relating to the initial matter ceased after the first hearing, the statute of limitations would have run since the alleged malpractice was committed on the date of the improper first hearing. However, the court held that it could not say, as a matter of law, that the Defendants’ subsequent acts were not so interrelated to the initial matter as to constitute continuing and interconnected representation related to terminating the employee. Therefore, triable issues of fact existed as to whether the separate retainer agreements pertained to separate and distinct matters, or whether they pertained to the ongoing initial matter. Since questions existed on the issue, the court held that summary judgment was improper.

The court also held that the Town submitted enough evidence to raise a triable issue of fact as to whether there was actual privity of contract (or a relationship close enough to actual privity) between Gladl and the town to make Gladl amenable to suit, and that summary judgment on that ground was also improper.

993 N.Y.S.2d 396 (4th Dep’t. 2014)

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