1 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 A 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 9 th 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.2 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 of3 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.

2 Braten notes that if the statute of limitations expired on May 6, 2007, a Sunday, his

action could have been timely filed on the following Monday, May 7, 2007.4 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