CPLR 3211(a)(1) provides for the dismissal of a claim so long as the defense is based upon “documentary evidence”. We’ve seen this used successfully in mortgage note cases, (e.g., Bronxville Knolls, Inc. v. Webster Town Center Partnership, [1st Dep’t 1995]), as well as lease litigation (e.g., 150 Broadway N.Y. Assocs., L.P. v. Bodner, [1st Dep’t 2004]), but how about in a legal malpractice case? Does a termination letter from lawyer to client operate to successfully cut off malpractice claims as a matter of law?
This defense was argued in Prott v. Lewin & Baglio, LLP, where the Second Department upheld the denial of a motion to dismiss based upon documentary evidence. There, the plaintiff claimed that the defendant law firm was retained, but failed to timely commence an action later held barred by the statute of limitations. The defendant law firm raised as a defense, that it had terminated the relationship earlier. The documentary evidence proffered was the law firm’s termination letter in September 2012 — prior to the expiration of the applicable statute of limitations set to expire December 2012. The trial court and Appellate Division held, however, that the letter failed to “utterly refute” plaintiff’s claim, which is a necessary finding to mount a successful 3211(a)(1) defense.
When terminating or declining a client relationship, be mindful that some courts have held that where the expiration of the limitations period is clear, the date should have been specified to the client in the letter, see, e.g., Burke v. Landau, Miller & Moran, where the First Department held that a question of fact existed when the non-engagement letter did not specify the date in the letter.