Continuing to look at Tantleff v Kestenbaum & Mark 2015 NY Slip Op 06720 Decided on September 2, 2015 the Appellate Division, Second Department answers that discussion and a rational explanation for a decision may well make it strategic rather than negligence.
“Here, the cause of action to recover damages for legal malpractice accrued on October 3, 2001, when the plaintiffs, upon the defendants’ recommendation, executed IRS Form 4549-CG consenting to an assessment of over $1.5 million in tax liability as well as civil fraud and negligence penalties (hereinafter the consent agreement) (see Landow v Snow Becker Krauss, P.C., 111 AD3d 795; Weiss v Deloitte & Touche, LLP, 63 AD3d 1045). Based on that accrual date, the applicable three-year statute of limitations would have expired on October 3, 2004, approximately two years prior to the commencement of this action on September 15, 2006. However, it is undisputed that, pursuant to the doctrine of continuous representation, the three-year statute of limitations pertaining to the defendants’ alleged legal malpractice in October 2001 was tolled during the time period when the defendants continued to represent the plaintiffs before the IRS on the specific subject matter underlying the malpractice claim. Consequently, at issue is when that representation and tolling ceased and the three-year statute of limitations period began (see Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d at 735).”
“In any event, even if this action were timely commenced, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that their recommendation that the plaintiffs execute the consent agreement was a reasonable strategic decision (see Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C., 122 AD3d 686; Keeley v Tracy, 301 AD2d 502; Hart v Carro, Spanbock, Kaster & Cuiffo, 211 AD2d 617). Furthermore, the defendants demonstrated that the recommendation was made after extensive discussions with the plaintiffs, who agreed to the course of action (see Noone v Stieglitz, 59 AD3d 505; Holschauer v Fisher, 5 AD3d 553; cf. Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282). In opposition, the plaintiffs offered no evidence to raise a triable issue of fact as to whether the recommendation “was an unreasonable course of action that constituted legal malpractice” (Keeley v Tracy, 301 AD2d at 503; see Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C., 122 AD3d at 687). The plaintiffs’ claims amounted to nothing more than their present dissatisfaction with the defendants’ strategic choice and thus, did not support a malpractice claim as a matter of law (see Pere v St. Onge, 15 AD3d 465, 466; Zarin v Reid & Priest, 184 AD2d 385, 385).”