Continuous Representation Doctrine Allegations Insufficient to Save Professional Malpractice Claims

On June 3, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision in Board of Mgrs. of 141 Fifth Ave. Condominium v. 141 Acquisition Assoc. LLC, 2019 NY Slip Op. 31555(U), holding that continuous representation doctrine allegations were insufficient to save a professional malpractice claim, explaining:

On a motion to dismiss a claim pursuant to CPLR 3211 (a) (5), the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. The three-year limitation of CPLR 214 (6) controls in a negligence action against a professional, such as an architect or engineer. The claim accrues when the professional relationship ends, usually upon issuance of the final payment certificate under the contract. If the action is commenced after the statute of limitations expires, a plaintiff may be able to avoid dismissal by asserting that the statute of limitations is tolled by the continuous representation doctrine, or at least showing that there is an issue of fact as to its application. The doctrine of continuous representation applies when a plaintiff shows that he or she relied upon an uninterrupted course of services related to the particular duty breached.

Here, both GACE and MG demonstrate, prima facie, that the professional negligence claims against them are barred by the three-year statute of limitations. GACE presents the affidavit of its office administrator, who provides a copy of an invoice, dated July 15, 2010, stating that it was the final invoice and that GACE completed all work on the Project in 2010. MG's principal, also annexes a copy of an invoice, dated January 31, 2012, to his affidavit and states that it "was the final invoice ... for services provided at the Project." This evidence shows that they completed all work on the Project more than three years before J Construction commenced the instant third-party action in August 2017.

In opposition, J Construction fails to raise a question of fact as to whether the statute of limitations for professional negligence was tolled or is otherwise inapplicable. It simply argues that, in light of Board of Manager's allegation that, as of 2014, work on the Building was ongoing, discovery may reveal that GACE and MG continued to provide services beyond the dates of their purported final invoices. J Construction's unsupported surmise is insufficient to defeat the motions to dismiss, as there is no indication that GACE or MG were part of such work. If the statute is to be avoided, there should be some factual demonstration in the answering papers.

To the extent J Construction claims that discovery may reveal grounds to toll the statute of limitations under the application of the continuous treatment doctrine, it overlooks that an argument of continuous treatment based on evidence newly discovered is inconsistent with the requisite showing of reliance upon the continued services related to the particular duty breached.

Accordingly, the professional negligence claims against GACE and MG are dismissed as time-barred. Because I dismiss the claim as time-barred, I do not address GACE' s and MG' s independent ground for dismissal for failure to plead facts sufficient to state functional privity.

(Internal quotations and citations omitted).

We both bring and defend professional malpractice claims and other claims relating to the duties of professionals such as lawyers, accountants and architects to their clients. Contact Schlam Stone & Dolan partner Erik Groothuis at egroothuis@schlamstone.com if you have questions regarding such claims or appeals of such claims.