Decedent hires attorney to prepare a will, and to make changes to beneficiaries for her assets.  As one might predict, something goes wrong.  in Gurvitz v Wank; 2011 NY Slip Op 32511(U); September 19, 2011; Supreme Court, Nassau County; Docket Number: 10468/06; Judge: Ute W. Lally we see the results.  The litigation goes on for years, and only now, some 20 years later, are the actual claims honed to an amended complaint.

"In December 1989 , defendant Jerald Wank, an attorney and a certified public accountant, prepared the Last Will and Testament for non-party Marta Wisterich (the Will"). The Will was executed on January 3 , 1990 and named , both , the plaintiff Barbara Gurvitz, and the defendant, Jerald Wank, as co-executors of her Estate. The Will also named the plaintiff as the sole beneficiary. Apparently, at the time of the preparation and execution of the Will , Marta Wisterich asked Wank to change the beneficiary of her Teacher s Insurance and Annuity Association (TIM) Equity Fund to Barbara Gurvitz. Plaintiff claims that the defendant failed to file the requisite paperwork with the TIM reflecting the requested change. As a result, plaintiff filed the appropriate papers with TIM herself on April 22 1991.  Marta Wisterich died on May 28 , 1991.

Plaintiff claims that the defendant then negotiated an agreement to split the Estate of Marta Wisterich in half as between the decedent’s aunt and the plaintiff. She claims that during the negotiations therein , defendant apparently represented the interests of the plaintiff as well as the interests of the Estate. Furthermore , plaintiff claims that the defendant failed to pay her the half of the estate to which she was entitled , instead retaining said share and telling her that he would first pay the outstanding taxes on her behalf. Plaintiff claims that the defendant deposited said monies into a new (escrow) account created under her name, from which defendant withdrew the money to give to the decedent’s aunt. Plaintiff claims that the escrow account created an appearance of income that the plaintiff did not in fact receive. She also claims that not only did the defendant fail to
file or pay plaintiff’ s taxes , but he also refused to pay back the money he held in escrow and refused to represent her before the IRS and the New York State Department of Finance when plaintiff received a tax bill. Plaintiff claims that as the result of defendant’s mistakes, her liability to the IRS totaled more than $160 977. 84 and the amount paid to the Department of Finance totaled more than $23 361. 11. In addition plaintiff claims that as the executor, defendant failed to sell Wisterich’ s cooperative apartment in New York for two years after her death , resulting in  fines and penalties to the Estate and further diminishing the value of the residual Estate.

The statute of limitations begins to run when the cause of action accrues (CPLR 9203(aD, Le.
 "when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court"(Aetna Life Cas. Co. v Nelson 67 NY2d 169 , 175).  Plaintiff claims in her first cause of action (breach of fiduciary duty as attorney) that plaintiff was represented by the defendant from "March 1992 to now acting as her  attorney with respect to the estate of Marta Wisterich". As alleged in her proposed amended complaint, the claimed breach , as attorney, occurred when the defendant misappropriated funds with respect to plaintiff’ s taxes. According to the plaintiff’ s own allegations said breach occurred some time after May 1992 and before 2000 when defendant forwarded the funds held for the plaintiff in his escrow account to the plaintiff’  then attorney, Mr. Caro. Clearly, under these facts , and even assuming that the breach of fiduciary duty occurred at the very latest in 2000, the cause of action to recover damages for breach of fiduciary duty is time-barred insofar as asserted against Wank as attorney (CPLR 3211 (a)5.). Accordingly, plaintiffs proposed first cause of action for breach of fiduciary duty as attorney is dismissed. Plaintiff has failed to make the requisite evidentiary showing establishing merit to her proposed amended claim (Joyce v McKenna Assoc. , supra; Morgan v Prospect Park Assocs. Holdings, supra). ‘