The theme of time slipping away is fodder for song lyrics in all genres. In legal malpractice as well as in professional malpractice it is a constant theme. Things happen and clients do not discover it immediately; the objective wrongfulness of conduct does not become immediately apparent. Cases are started too late, as in Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP 2017 NY Slip Op 07764 Decided on November 8, 2017 Appellate Division, Second Department. With little explanation (not even a discussion of the type of representation), the AD2 affirms the dismissal of this pro-se case.
“Actions to recover damages for malpractice against nonmedical professionals are governed by the three-year statute of limitations set forth in CPLR 214(6) (see Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538, 539; 730 J & J, LLC v Polizzotto & Polizzotto, Esqs., 69 AD3d 704, 705). A cause of action alleging professional malpractice against an accountant accrues upon the client’s receipt of the accountant’s work product (see Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 8; Ackerman v Price Waterhouse, 84 NY2d 535, 541; CRC Litig. Trust v Marcum, LLP, 132 AD3d 938, 939; Rodeo Family Enters., LLC v Matte, 99 AD3d 781, 783).
The defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted by the plaintiff Madeleine E. Schwartz (hereinafter the plaintiff) by demonstrating that the professional malpractice causes of action accrued more than three years prior to the commencement of the action (see Meredith v Siben & Siben, LLP, 130 AD3d 791, 792; Farage v Ehrenberg, 124 AD3d 159, 164; Napoli v Moisan Architects, 77 AD3d 895, 895-896). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the statute of limitations was tolled by the continuous representation doctrine (see Rodeo Family Enters., LLC v Matte, 99 AD3d at 784; M.G. McLaren, P.C. v Massand Eng’g, L.S., P.C., 51 AD3d 878, 878; Giarratano v Silver, 46 AD3d 1053, 1055; Booth v Kriegel, 36 AD3d 312, 314; Mitschele v Schultz, 36 AD3d 249, 253).”