The statute of limitations is a fierce barrier to litigation. Time ticks by in an excruciating but unstoppable parade. Three years can go by in a flash. The only toll to the statute (barring another inevitable, death) is continuous representation. It applies in legal malpractice as well as in accounting malpractice. In Reville v Melvin Ginsberg & Assoc. 2017 NY Slip Op 30821(U) April 20, 2017 Supreme Court, New York County Docket Number: 152167/2015 Judge: Joan M. Kenney we see a good explanation of its application in accounting or professional malpractice.
“CPLR 214 (6) imposes a three-year time limitation period in all professional malpractice actions, except those involving medical malpractice. In an accounting malpractice action, the limitations period is measured from the date the client receives the accountant’s advice and/or work product (Ackerman v Price Waterhouse, 84 NY2d 535, 541-543 ). The statute may be tolled in accounting malpractice cases pursuant to the continuous representation doctrine (Zaref v Berk & Michaels, 192 AD2d 346 [1st Dept 1993]; Hall & Co. v Steiner & Mondore, 147 AD2d 225 [3d Dept 1989]). Facts supporting the application of the continuous representation doctrine must be proffered in connection with the “specific matter directly under dispute” and must assert more than merely “the continuation of a general professional relationship” (Zaref, 192 AD2d at 347-348). A negligence-based claim, absent fraud, accrues when the malpractice is committed, even though the injured party may be ignorant of the wrong or injury (Ackerman, 84 NY2d at 541). Plaintiffs action was not commenced until March 4, 2015, well past the three year limitations period. Consequently, plaintiffs malpractice claim is untimely unless the continuous representation doctrine serves to toll the three-year limitations period. ”
“Here, plaintiffs allegations do not establish a course of representation as to the particular problems relating to this transaction that gave rise to the malpractice claim. Furthermore, there is no written agreement between the parties. The invoices submitted by defendant appear to contemplate separate and discrete accounting services for each fiscal year, and once the defendant had performed the services for a particular year, no further work was undertaken (Vergari reply affirmation, exhibit GG). No corrective or remedial services were offered. As a result, there was no mutual understanding between the parties that MGA would provide Reville with any further representation in connection with this alleged unlawful transaction (see also, Apple Bank for Sav. v PricewaterhouseCoopers, LLP, 23 Misc 3d 1126 [A], 2009 NY Slip Op 50948 [U] [Sup Ct, NY County 2009], revd 70 AD3d 438 [l51 Dept 2010]). In Apple Bank, the Appellate Division, First Department, reversed the Supreme Court, which had found a question of fact about whether certain claims based on tax advice and the resulting tax returns are timely under the continuous representation doctrine. In its decision, the lower court had relied on Cuccolo v Lipsky, Goodkin & Co. (826 F Supp 763 [SD NY 1993]) for the proposition that determining whether a toll applies to a particular cause of action is generally a question of fact. However, the First Department, citing Williamson, supra, held that the continuous representation doctrine did not apply to toll the statute of limitations on a malpractice claim brought by a client against its accounting firm, where the accountant never had an express, mutual agreement to advise the client on the effect of a stock buy back after the original advice.”