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Court Holds Real Estate Malpractice Claim Is Time-Barred

The plaintiff claimed that he missed the closing date on three real estate transactions because his lawyers did not give notice. The lawyers insisted that (a) the plaintiff fired them long before closing and (b) they notified plaintiff of the new closing dates.

The court held the case barred by the three-year statute of limitations in New Jersey. The explanation:

Here, plaintiff, a New Jersey resident, brings a legal malpractice claim against Kane and Berger. The applicable statute of limitations for a claim of legal malpractice is three years in New York (CPLR 214[6]) and six years in New Jersey (McGrogan v Till, 167 NJ 414, 426, 771 A2d 1187 [2001]). Therefore, New York’s three-year statute of limitations period applies.

The absolute latest date Kane or Berger (on behalf of Kane) could possibly have committed legal malpractice was February 7, 2013— the latest closing date referenced in the complaint (see complaint at 17 [alleging that Kane received two notices from Harris Schaefer on December 20, 2012 that closings for four separate units would occur on February 7, 2013]). Taking these facts as true, as the Court must on a motion to dismiss, this action was still commenced more than three years later — in October 2016. Therefore, this action is time barred against Kane and Berger.

Plaintiff’s reliance on a theory of a continuing duty of representation does not compel a different result. Plaintiff allegedly suffered damages because he was unaware of these notices and lost his down payments when he ignored the closing dates. That means the cause of action accrued at those closing dates— assuming arguendo that Kane and Berger had some continuous duty to represent plaintiff after plaintiff fired Kane in October 2006.

Comment: Illinois does not recognize the continuing duty of representation.

Ed Clinton, Jr.

Source: Soloway v. KANE KESSLER, PC, 2017 NY Slip Op 50992 – NY: Supreme Court 2017 – Google Scholar

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