17‐1145
Braten v. Kaplan
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 9th day of May, two thousand eighteen.
PRESENT:
JOHN M. WALKER, JR.,
DENNIS JACOBS,
Circuit Judges,
KATHERINE B. FORREST,1
District Judge.
_____________________________________
Milton Braten,
Plaintiff‐Appellant,
v. 17‐1145
Eliot Kaplan,
Defendant‐Appellee.
_____________________________________
1 Judge Katherine B. Forrest, of the United States District Court for the Southern District
of New York, sitting by designation.
1
FOR PLAINTIFF‐APPELLANT: Milton Braten, pro se, Greenville, SC.
FOR APPELLEE: Stephen D. Straus (Andrew N. Adler, on the
brief), Traub Lieberman Straus &
Shrewsberry LLP, Hawthorne, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Batts, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Milton Braten, pro se, appeals from a judgment of the United States District Court
for the Southern District of New York (Batts, J.) dismissing, on summary judgment, his
claim for legal malpractice against Eliot Kaplan, who represented Braten in divorce
proceedings. The district court adopted the findings of the magistrate judge’s Report
and Recommendation (“R&R”). The R&R found that, under the continuing
representation doctrine, the three‐year statute of limitations began to run on May 2, 2004
when Braten drafted a letter to the state court requesting Kaplan’s removal as counsel,
and that his May 7, 2007 complaint was therefore time‐barred. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.
We review de novo a grant of summary judgment, VKK Corp. v. Nat’l Football
League, 244 F.3d 114, 118 (2d Cir. 2001), “view[ing] the evidence in the light most
favorable to the party opposing summary judgment, . . . draw[ing] all reasonable
inferences in favor of that party, and . . . eschew[ing] credibility assessments.” Amnesty
Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (internal quotation marks
omitted). Summary judgment is appropriate if there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Proc. 56.
Diversity actions arising from New York state claims are subject to New York’s
three‐year statute of limitations for malpractice suits. See N.Y. C.P.L.R. § 214; Stuart v.
Am. Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998). A malpractice claim accrues “when
all the facts necessary to the cause of action have occurred and an injured party can obtain
relief in court,” even if the injured party is ignorant of the defendant’s conduct. McCoy
v. Feinman, 99 N.Y.2d 295, 301 (2002) (quoting Ackerman v. Price Waterhouse, 84 N.Y.2d
535, 541 (1994)). However, under the continuous representation doctrine, the statute of
2
limitations is tolled while there is a “mutual understanding of the need for further
representation on the specific subject matter underlying the malpractice claim,” Zorn v.
Gilbert, 8 N.Y. 3d 933, 934 (2007) (quoting McCoy, 99 N.Y.2d at 306), such that the parties
reasonably intend “their professional relationship of trust and confidence . . . would
continue,” Shumsky v. Eisenstein, 96 N.Y.2d 164, 170 (2001). Accordingly, a client’s trust
and confidence in his attorney is a predicate for the continuous representation doctrine.
See Coyne v. Bersani, 61 N.Y.2d 939, 940 (1984); Farage v. Ehrenberg, 124 A.D.3d 159, 167 (2d
Dep’t 2014); Aaron v. Roemer, Wallens & Mineaux, L.L.P., 272 A.D.2d 752, 755 (3d Dep’t
2000). In order to invoke the doctrine, a plaintiff must provide “clear indicia of ‘an
ongoing, continuous, developing, and dependent relationship between the client and the
attorney.’” Farage, 124 A.D.3d at 164 (quoting Aseel v. Jonathan E. Kroll & Assoc., PLLC,
106 A.D.3d 1037, 1038 (2d Dep’t 2013)).
As the R&R concluded, the continuous representation doctrine did not toll the
statute of limitations beyond May 2, 2004. That day, Braten drafted a letter to the state
court stating his dissatisfaction with Kaplan, accusing Kaplan of fraud and malpractice,
and asking the court to remove Kaplan as his counsel. Although Braten argues that he
was uncertain of his intentions until he completed the letter on May 6 or submitted it on
May 10,2 Braten stated during his deposition that the purpose of writing the letter was to
remove Kaplan as his counsel because he did not trust him anymore. Accordingly, the
letter and testimony evidence that Braten lost trust and confidence in Kaplan no later
than May 2, 2004.
Braten also argues that the toll should be extended to May 10, 2004, when Kaplan
filed a letter application on Braten’s behalf, indicating there was an ongoing attorney‐
client relationship. But Kaplan’s filing of the letter application does not sufficiently
establish that Braten’s trust and confidence had been restored after May 2. See Aaron,
272 A.D.2d at 755. Moreover, Braten did not withdraw his request for new counsel after
Kaplan filed the letter application, and proceeded to retain new representation, conduct
that suggests the letter application did not restore the relationship of trust and
confidence. Braten has therefore failed to provide clear indicia that the attorney‐client
relationship continued beyond May 2 such that tolling would continue. See Coyne, 61
N.Y.2d at 940; Farage, 124 A.D.3d at 164. Accordingly, there is no genuine dispute of
material fact as to whether Braten’s action is time‐barred.
Braten notes that if the statute of limitations expired on May 6, 2007, a Sunday, his
2
action could have been timely filed on the following Monday, May 7, 2007.
3
We have considered Braten’s remaining arguments and conclude that they are
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
4