The statute of limitations serves to freshen and re-freshen the litigation warehouse.  Claims and potential claims are warehoused, and then sometimes brought out.  Policy considerations require that there be limits on how long a claim can be stored.  When the sue-by date arrives, the question of a statute of limitations must be decided, as in Collins Bros. Moving Corp. v Pierleoni  2017 NY Slip Op 07586 [155 AD3d 601]  November 1, 2017  Appellate Division, Second  Department.  Here the question was how far back in tax years may the accounts be held responsible?

“In seeking to assert the statute of limitations as a bar to a claim, a moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired (see Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 789 [2017]). If the moving defendant satisfies its burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable (see id.Barry v Cadman Towers, Inc., 136 AD3d 951, 952 [2016]). A plaintiff may in some cases rely on the “continuous representation” doctrine to toll the statute of limitations (see Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 194-196 [2009]). A prerequisite for the application of the continuous representation doctrine is that the relationship be continuous with respect to the matter in which the malpractice was alleged; a general professional relationship involving only routine contact is not sufficient (see Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 9-10 [2007]; Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]; Rodeo Family Enters., LLC v Matte, 99 AD3d 781, 784 [2012]). More specifically, the continuous representation doctrine “applies only where there is ‘a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim’ ” (Rodeo Family Enters., LLC v Matte, 99 AD3d at 784, quoting McCoy v Feinman, 99 NY2d 295, 306 [2002]).

Here, in opposition to the accounting defendants’ motion to bar arbitration of claims that were untimely under the three-year limitations period provided in the letter agreements, the plaintiffs did not contend that the accounting defendants had failed to meet their prima facie burden. Instead, the plaintiffs relied entirely on the continuous representation doctrine. In so doing, the plaintiffs alleged, in conclusory fashion, that “[t]he parties mutually contemplated ongoing representation following each annual review,” and that Anchin “had a continuing obligation to remedy defects in any consolidated financial statements.” The plaintiffs also submitted an affidavit of Webers, in which he averred, without any specificity, that “[r]evisions of prior years[‘] financial statements were routinely performed.” The plaintiffs’ evidence failed to raise a question of fact as to whether the limitations period contained in the letter agreements was tolled by the continuous representation doctrine (see Williamson v PricewaterhouseCoopers LLP, 9 NY3d at 9; Cusimano v Schnurr, 137 AD3d 527, 531 [2016]; cf. Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 790; Bronstein v Omega Constr. Group, Inc., 138 AD3d 906, 908 [2016]; Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d at 196). Thus, the Supreme Court correctly determined that the continuous representation doctrine was inapplicable.

The accounting defendants failed, however, to submit any evidence that would have established which of the plaintiffs’ causes of action were untimely. The letter agreements provided [*3]for a three-year limitations period, as follows: “No action, regardless of form, arising out of the services under this agreement may be brought by either of us more than three years after the date of the last services for the year in dispute provided under this agreement.” Because the record before us does not establish the relevant “last services” dates, the determination of those dates and the consequent timeliness of the plaintiffs’ various causes of action must be made in further proceedings.”