The statute of limitations is a defense that a defendant can use if he or she believes that the plaintiff waited too long to sue. The law gives an injured party a deadline to bring an action. However, determining when the statute of limitations expires may be more complicated than it seems. You first have to know when the time starts to run. As seen in two recent appellate court decisions, plaintiffs must strictly comply with the statute of limitations’ requirements or face dismissal of their lawsuit.

In Farina v. Katsandonis, P.C., the New York Appellate Division, First Department held that the Plaintiff’s legal malpractice complaint should be dismissed on the grounds that the statute of limitations expired. The key issue in the case was when did the Defendant-law firm stop representing the Plaintiff because, at that point, the statute of limitations on the malpractice action began to run. 

Under New York Law, there are two ways that an attorney who has appeared for a party in litigation can be relieved of its obligation to represent that party. The first way is for the client to obtain new counsel and sign and file a consent to change attorney form (“Consent”) with the Court. The other way is for the attorney seeking to withdraw to make a motion to the Court seeking an order relieving the attorney of its obligation to continue representing the client. 

In Farina, the outgoing attorney made a motion to withdraw. Thereafter, the client (the Plaintiff in this action), retained new counsel and filed a Consent while the outgoing attorney’s motion was pending. Approximately two weeks later, the Court granted counsel’s unopposed motion to withdraw. The Plaintiff argued that the statute of limitations started to run when the Court granted the motion, not when the Plaintiff filed the Consent and therefore, its action was timely. However, the lower Court and the Appellate Division, First Department disagreed and found that the filing of a fully-executed Consent by the Plaintiff automatically ended the Defendant’s obligation to represent the Plaintiff. As a result, the Plaintiff’s filing of the malpractice action was barred by the three year statute of limitations. 

In another recent court decision, the strict requirements of the statute of limitations saved a lawsuit from dismissal. In the matter of Grout v. Visum Development Group LLC, the Petitioner sought to annul approval of a site plan based on certain violations of the Zoning Code that allegedly occurred in connection with the project. The Defendant argued the petition was barred by the statute of limitations. At issue, was a Municipal Statute under the General City Law which required that any determination of the Zoning Board be filed within five business days from the date it was rendered, making it a public record. The 60-day period in which to appeal such a determination would begin to run upon the filing. The Appellate Division, Third Department in Grout found that no determination was ever filed by the Zoning Board and, therefore, the Petitioner’s action could not be time-barred. The Court sent the case back to the Board of Zoning Appeals to determine the merits of Petitioner’s administrative appeal. 

As demonstrated in these cases, failure to comply with the applicable statute of limitations will result in a party being barred from enforcing its claims or statutory rights. As a result, parties should not wait to discuss a legal matter with an attorney. If you have a potential claim, please contact one of our litigation attorneys.