Just as in Legal Malpractice, the principal of continuing representation tolls the three year statute of limitations in accounting malpractice. The rules of burden shift from defendant to plaintiff are similar too.
Schwartz v Leaf, Salzman, Manganelli, Pfiel, & Tendler, LLP 2014 NY Slip Op 08823 Decided on December 17, 2014 Appellate Division, Second Department discusses the rule.
"In an action, inter alia, to recover damages for negligence, accounting malpractice, fraud, breach of fiduciary duty, and unjust enrichment, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Driscoll, J.), dated May 13, 2013, as denied those branches of their motion which were pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the second cause of action, and the plaintiff Madeleine E. Schwartz cross-appeals, as limited by her brief, from so much of the same order as granted those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(7) to dismiss the first, third, fourth, fifth, sixth, seventh, eighth, and ninth causes of action.
ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is time-barred, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see Bill Kolb, Jr., Subaru, Inc. v LJ Rabinowitz, CPA, 117 AD3d 978; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017). The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise
inapplicable or whether the action was actually commenced within the applicable limitations period (see Ritty Jie Yuan v 2368 W. 12th St., LLC, 119 AD3d 674; Beizer v Hirsch, 116 AD3d 725; Williams v New York City Health & Hosps. Corp., 84 AD3d 1358, 1359). Here, the defendants established their prima facie entitlement to dismissal of the complaint based on the expiration of the three-year statute of limitations applicable to the cause of action, inter alia, to recover damages for accounting malpractice (see CPLR 214[6]; Regency Club at Wallkill, LLC v Appel Design Group, P.A., 112 AD3d 603). In opposition, however, the plaintiffs raised a question of fact as to whether the statute of limitations was tolled by the doctrine of continuous representation (see Howish v Perrotta, 84 AD3d 1312; Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 196; Rehberger v Garguilo & Orzechowski, LLP, 50 AD3d 760)."