Gotay v. Breitbart, 58 A.D.3d 25, 866 N.Y.S.2d 638 (N.Y. App. Div. 2008)

Brief Summary
Attorney Handwerker took a client’s case to a new firm. A partner from the new firm told the client that the firm would not take the case. This rejection, however, did not put the client on reasonable notice that she was no longer represented by Handwerker or his old firm. Thus the client was not subsequently barred by the statute of limitations from suing Handwerker for legal malpractice.

Complete Summary
Attorney David Breitbart represented Bernadette Gotay in a medical malpractice action. Breitbart’s associates then formed the firm Handwerker, Honschke, and Marchelos (“HHM”), which took over Gotay’s case in 1994. When HHM dissolved in 1998, attorney Handwerker took Gotay’s case to a new firm. A partner at the new firm, Mark Hankin, evaluated Gotay’s case and determined that the firm would not represent her. Hankin delivered this news to Gotay in 1999.

In 2002, Gotay sued Breitbart and HHM for legal malpractice. Both Breitbart and HHM moved for summary judgment, claiming the statute of limitations had lapsed for Gotay’s claims because the relevant attorney-client relationships ended in 1994 or 1999.

The New York Appellate Division, First Department, granted Breitbart’s motion because Gotay had unambiguously substituted HHM for Breitbart in 1994. But the court held against HHM because Gotay did not have reasonable notice of HHM’s withdrawal from representation. The court noted that Hankin’s refusal to take the case could not “reasonably be viewed as having placed [Gotay] on notice that her attorney-client relationship with her own attorneys at HHM had concluded[,]” and that there was no proof that Gotay knew that Handwerker had moved from HHM to Hankin’s firm. Id. at 641.

A dissenting judge argued that the majority had manufactured an issue of fact by speculating that Gotay did not know about Handwerker switching firms. The judge noted that Gotay had never claimed to lack such knowledge.

Significance of Opinion
The court highlights the importance of unambiguous communication with clients when withdrawing from representation.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.

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