Accountants and stock-financial advisers are professionals for the purpose of the statute of limitations. For this reason the doctrine of “continuous representation” can apply. 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 gives some explanation on how to calculate the statute of limitations and apply continuous representation.
“In this action sounding in professional negligence, breach of contract, breach of fiduciary
duty, and aiding and abetting fraud, plaintiff Daly Reville (Reville) seeks damages for purported
unlawful conduct by her accounting firm, Melvin Ginsberg & Associates (the firm; or MGA).
Defendant moves for summary judgment, pursuant to CPLR 3212, to dismiss the complaint on
the basis that it is barred by the statute of limitations, lacks merit and is subject to the judicial
policy against double recovery. ”
“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. ”
“Plaintiffs reliance on the Alpert case is misplaced. In Alpert, plaintiffs, Joan and Paul
Alpert, commenced an action against defendant, a certified public accountant, for negligence and
breach of fiduciary duty. Plaintiffs claimed defendant played a role in plaintiffs’ decisions to
invest in eight tax shelters, and in plaintiffs’ responses to tax deficiency notices received from
the Internal Revenue Service (IRS). Defendant denied recommending any investments, denied
preparing tax returns that included the alleged tax benefits, and denied advising against settling
their dispute with the IRS. Defendant asserted that he had been purely plaintiffs’ accountant, not
their financial advisor. The Alpert court found that there was a triable issue on a material
question of fact where Paul Alpert’s deposition revealed that, although he had retained tax
counsel, he would regularly send defendant the mail from the IRS first, and only relay copies to
his tax lawyer if defendant so advised. The court concluded, “[t]here is at least some evidence
that he continued to advise the Al perts on the tax shelter problems.” (Id. at * 5).
In contrast, and directly applicable here, the Court of Appeals, stressed that a “mutual
understanding” between the parties regarding further representation and the “nature and scope of
the parties’ retainer agreement (engagement) play a key role in determining whether continuous representation was contemplated by the parties.” (Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 10 , quoting Shumsky v Eisenstein, 96 NY2d 164, 170  [internal quotation marks omitted]).
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