20-2958 

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 ORDER 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 20th day of April, two thousand twenty-one.

PRESENT:

GUIDO CALABRESI,

SUSAN L. CARNEY,

WILLIAM J. NARDINI,

Circuit Judges.

_________________________________________

LUISA CASTAGNA ESPOSITO,

Plaintiff-Appellant,

v. No. 20-2958

WILLIE GARY, INDIVIDUALLY AND AS A PARTNER OF 

WILLIAMS, PARENTI, WATSON, GARY, CHRISTOPHER CHESTNUT,

INDIVIDUALLY, AND AS A PARTNER OF THE CHESTNUT FIRM,

Defendants-Appellees,

ANDREW MALONEY, INDIVIDUALLY, AND AS A PARTNER OF 

THE MALONEY LAW GROUP, JANE AND JOHN DOES, CHRISTOPHER 

CHESTNUT, L.L.P., WILLIAMS, PARENTI, LEWIS & WATSON LLC,

Defendants.

_________________________________________
 

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FOR APPELLANT: EDWARD GRIFFITH, The Griffith Firm, 

New York, NY; Peter J. Gleason, Esq., 

Mahopac, NY.

FOR APPELLEE: STEPHEN L. DRUMMOND, Drummond & 

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 facts, 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 committed 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 Complaint, finding it barred by the applicable three-year statute of limitations 

1 Appellees 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 to 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) ruling with its review of the underlying decision).
 

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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, she 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 basis 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 ended. Aseel v. Jonathan E. Kroll & Assoc., 

PLLC, 966 N.Y.S.2d 202, 204 (2d Dep’t 2013).

The district court determined that the allegations in Esposito’s First Amended 

Complaint reflected that she “had lost 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, however, that Esposito communicated a loss of trust and confidence to her 

attorneys before December 28, 2015, when she sent a letter terminating their engagement. A

client’s trust and confidence in her attorney can end before she formally terminates their 

representation, it is true. See 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.
 

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(relationship of trust and confidence ended when attorney sent letter to client saying he 

could no longer represent her and she would need 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 this 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 malpractice 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 that 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 valid 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 for further proceedings consistent with this 

Order. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court