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 [1994]). 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 [2007], quoting Shumsky v Eisenstein, 96 NY2d 164, 170 [2001] [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
2010]). “

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

 

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.