20

- 295 8 Esposito v. Gary

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 ORD ER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY 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 20 th da y of April, two thousand twenty

- one

.
PRESENT: G UIDO C ALABRESI , S USAN L. C ARNEY , W ILLIAM J. N ARDINI , Circuit Judges

.

_________________________________________
L UISA C ASTAGNA E SPOSITO , Plaintiff

- Appellant
,

v. No. 20

- 2958

W ILLIE G ARY , INDIVIDUALLY AND AS A PARTNER OF W ILLIAMS , P ARENTI , W ATSON , G ARY , C HRISTOPHER C HESTNUT , INDIVIDUALLY , AND AS A PARTNER OF T HE C HESTNUT F IRM , Defendant s

-

Appellee s ,
A NDREW M ALONEY , INDIVIDUALLY , AND AS A PARTNER OF THE M ALONEY L AW G ROUP , J ANE AND J OHN D OES , C HRISTOPHER C HESTNUT , L.L.P., W ILLIAMS , P ARENTI , L EWIS & W ATSON LLC
, Defendants

.

_________________________________________2 FOR APPELLANT: E DWARD G RIFFITH , The Griffith Firm, New York, NY; Peter J. Gleason, Esq., Mahopac, N Y

.
FOR APPELLEE: S TEPHEN L

. D RUMMOND , Drummon d & Squillace, PLLC, Jamaica, NY; Willie Gary, Gary, Williams, Parenti, Watson & Gary, P

. L

. L

. C

. , Jamaica, NY.
Appeal from a judgment of the United States District Court for the Southern District
of New York ( Gardephe
, J. ).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on May 18, 2020
, and the
order entered on August 10 , 2020
, are VACATED and the case REMANDED for further proceedings

. Luisa Castagna Esposito appeals from the district court’s May 18, 2020 judgment dismissing her complaint with prejudice . She also appeals from the district court’s August 10,
2020 denial of her motion to alter or amend that judgment , under Rule 59(e), or for relief from judgment, under Rule 60(b), of the Federal Rules of Civil Procedure

. 1 We assume the parties’ familiarity with the underlying f acts, procedural history, and arguments on appeal, to which we refer only as necessary to explain our decision to vacate and remand

. Esposito brought this action pro se on December 3, 2018
, alleging that Defendants Willie Gary and Christopher Chestnut comm itted legal malpractice in their representation of
her in a case against another of her former attorneys, Allen Isaac
, and his firm, Gladstein &
Isaac , LLP. The district court granted Gary and Chestnut’s motion to dismiss Esposito’s
First Amended C omplaint
, finding it barred by the applicable three

- year statute of limitations

1 Appelle e s question our jurisdiction to review the district court’s May 16, 2020 order and related May 18, 2020 judgment of dismissal. Appellee’s Br. 33

- 35. Because Esposito filed her motion under Rules 59(e) and 60(b) within 28 days of the district court’s judgment, her notice of appeal is timely as t o both the related judgment and order. See Fed. R. App. P. 4(a)(4) ; Banister v. Davis , 140 S. Ct. 1698, 1703 (2020) (a timely Rule 59(e) motion “suspends the finality of the original judgment” and an appellate court reviews any attack on the Rule 59(e) rul ing with its review of the underlying decision).3 and concluding also that Esposito ’s complaint failed to state a claim for legal malpractice
under New York law

. On appeal, Esposito does not challenge the latter determination

. Rather, s he argues that her complaint was not time

- barred and that the district court abused its discretion by denying her motion under Rule 59(e) and 60(b). She seeks an opportunity to replead

.
We agree with Esposito that the district court incorrectly dismissed her complaint as time

- barred. Under New York law, the statute of limitations on a claim for legal malpractice
is tolled under a theory of continuous representation while the attorney is representing the
client in the matter that provides the basi s for the malpractice claim

. Shumsky v. Eisenstein , 96 N.Y.2d 164, 168 (2001 ); see also Nobile v. Schwartz , 56 F. App’x 525, 526 (2d Cir. 2003)

. 2 The
doctrine is predicated on “ continuing trust and confidence in the relationship between the parties,” and therefore it ceases to toll the statute after the relationship of trust and
confidence between the client and attorney has end ed

. Aseel v. Jonathan E. Kroll & Assoc.,
PLLC
, 966 N.Y.S.2d 202 , 204 (2d Dep’t 2013)

.
The district court determ ined that the allegations in Esposito’s First Amended
C omplaint reflected that she “ had los t trust and confidence ” in her attorneys as early as “the
summer” of 2015. Special App’x 22 (citing Am. Compl. ¶¶ 49

- 51 ). The record is devoid of any indication , how ever, that Esposito communicated a loss of trust and confidence to her attorneys before December 28, 2015, when she sent a letter terminating the ir engagement

. A
client’s trust and confidence in her attorney can end before she formal ly terminates their
rep resentation, it is true. S ee Artese ex rel. Artese v. Pollack , 784 N.Y.S.2d 918 (Sup. Ct. 2004)

. Still, to suffice for tolling the statute, the end of the relationship of trust must be evinced by some outward manifestation by either client or attorney. See , e.g. , Aaron v. Roemer, Wallens & Mineaux, LLP , 707 N.Y.S.2d 711 , 713 (2000) (relationship ended on date plaintiff sent letter
to district court stating he would not contest attorney’ s motion to withdraw, two weeks before the attorney was permitted to withdraw from the case); Artese , 784 N.Y.S.2d 918

2 Unless otherwise noted, in quoting caselaw this Order omits all alterations, citations, footnotes, and internal quotation marks.4 (relationship of trust and confidence ended when attorney sent letter to client saying he could no longer represent her and she would nee d to retain new counsel). Aside from the complaint’s allegations about her own private view of her attorneys’ performance, Esposito
does not allege any outward manifestation or communication to her attorneys before
December 28 of that private view. If the statute is tolled past December 3, 2015, then Esposito’s claims are not time

- barred. Accordingly, we identify at least a “a question of fact regarding the application of the continuous representation doctrine,” and this question precludes a dismissal at th is stage based on the statute of limitations. Calcutti v. SBU, Inc ., 224 F.Supp.2d 691, 699 (S.D.N.Y. 2002)

. The district court also determined that Esposito’s First Amended Complaint failed to state a claim, a finding Esposito does not challenge on appeal. Rather, Esposito argues that her proposed Second Amended Complaint states valid and timely legal malpractic e claims,
and that the district court therefore erred in denying leave to amend. The district court denied leave to amend because it determined Esposito’s claims would be time

- barred in any

event, and her proposed Second Amended Complaint would not cure th at deficiency. Special App’x 25. Because we disagree with the district court’s application of the statute of
limitations to the allegations of the complaint , we remand to allow consideration of whether Esposito’s proposed Second Amended Complaint states va lid legal malpractice claims such that leave to amend should be granted. See Williams v. Citigroup Inc. , 659 F.3d 208, 214 (2d Cir. 2011)

.
* * * For the foregoing reasons , the judgment and order of the district court are
VACATED and the case REMANDED fo r further proceedings consistent with this
Order

.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court