Wait too long, and claims get stale.  Wait too long and claims disappear.  That’s exactly what happened in Johnson v Braverman CPA PC  2020 NY Slip Op 33149(U) September 25, 2020 Supreme Court, New York County
Docket Number: 650894/2020 Judge: Arlene P. Bluth.  A big overpayment was no longer subject to amendment and a big claim against the accountant was late.

“This case arises out of defendant’s work for plaintiff as an accountant. Plaintiff alleges that he hired defendant to handle his taxes in 2014. In 2016, he insists that he told defendant to file amended tax returns for 2013, 2014 and 2015. Later that year, plaintiff contends that defendant told him he had a tax liability of nearly $100,000 from the 2013, 2014 and 2015 federal, New York and New Jersey tax returns. He alleges that defendant filed a petition with the IRS Appeals Office in May 2016 to correct errors of previously filed amended tax returns but missed an August 2016 deadline to respond.
Plaintiff alleges that he hired another accounting firm in December 2016 and it calculated plaintiff’s tax liability to be only about $13,000. He alleges a breach of contract claim against defendant for miscalculating plaintiff’s tax liability and a fraud cause of action”

“The Court grants the motion. The allegations in the amended complaint clearly suggest a cause of action for accounting malpractice, which has a three-year statute of limitations (CPLR
214[6]). “The legislative history makes clear that where the underlying complaint is one which essentially claims that there was a failure to utilize reasonable care or where acts of omission or negligence are alleged or claimed, the statute of limitations shall be three years if the case comes within the purview of CPLR Section 214(6), regardless of whether the theory is based in tort or in a breach of contract” (In re R.M. Kliment & Frances Halsband, Architects (McKinsey & Co.,
Inc.), 3 NY3d 538, 541-42, 788 NYS2d 648 [2004] [internal quotations and citation omitted]).

And plaintiff’s accounting malpractice claim is time-barred. “There are circumstances where the statute of limitations is tolled, precluding dismissal on timeliness grounds although the alleged acts of negligence occurred more than three years prior to commencement of the action. This may occur where the parties engaged in a continuous professional relationship, such as where [the] same accounting firm provided ongoing services in addition to the yearly preparation of tax returns; however, this tolling of the statute is only appropriate where the continuous representation was in connection with the particular transaction which is the subject of the action” (Mitschele v Schultz, 36 AD3d 249, 252-53, 826 NYS2d 14 [1st Dept 2006]).

Here, defendant attached emails from plaintiff’s law firm to one of defendant’s employees in January 2017 instructing defendant to return plaintiff’s file (NYSCEF Doc. No. 42). It also submitted an affidavit from Mr. Braverman claiming that his work for plaintiff
terminated in response to those emails with plaintiff’s law firm and the files were shipped via FedEx on January 31, 2017 (NYSCEF Doc. No. 31, ¶¶16, 17).

The only logical conclusion is that the relationship with the parties ended in January 2017, at the latest, and this case was not commenced until February 7, 2020 more than three years later. The termination of plaintiff’s relationship with defendant—the demand for the return
of his files—starts the applicable limitations period (Mitschele, 36 AD3d at 253). “

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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…

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.