In Five Towns Pediatrics, P.C. v Billet, Feit & Preis, P.C. 2023 NY Slip Op 32328(U) July 12, 2023 Supreme Court, New York County Docket Number: Index No. 157252/2018
Judge: Andrea Masley we see that plaintiff had a rocky course with its accountants. Claims of embezzlement, mistakes, hiring and firing abound. In the end claims were lost on statute of limitations grounds.

“This is an action for accounting malpractice. The BFP Defendants were engaged
by plaintiff from 2009 to May 2015 and June 2017 to January 2018 to perform
accounting services. (NYSCEF 82, Verified Complaint ,m 9, 10.) Plaintiff fired BFP and
Steier in May 2015 because plaintiff was not satisfied with Steier’s handling of certain
real estate transactions. (NYSCEF 133, Schlusselberg aff,i 10; NYSCEF 121, tr at
190:9-191 :2 [Green Depa]; NYSCEF 118, tr at 86:2-22 [Schlusselberg Depa].) Plaintiff
engaged MWE2 from March 20153 until December 2017. (NYSCEF 133, Schlusselberg
aff ,i,i19, 25.) MWE was fired in 2017 “due to [an] error that had been committed with
regard to individual tax preparation for Dr. Green.” (Id. ,i 25.) Plaintiff then rehired BFP,
but eventually hired a new accountant because plaintiff’s mortgage required bank
approval of plaintiff’s accounting firm and the bank holding plaintiff’s mortgage would not
approve BFP. (NYSCEF 118, tr at 134:22-135:6 [Schlusselberg Depa].) After hiring the
new accounting firm, it was discovered that plaintiff’s practice administrator, Peter
Singh, was embezzling money from plaintiff. (Id. at 140.) Plaintiff alleges that

defendants’ failure to discover this fraud was malpractice and that is the basis of this
action. (NYSCEF 82, Verified Complaint ,i 34; NYSCEF 133, Schlussel berg aff ,i,i 10,
24-25.)
Motion Seq. No. 002 – Summary Judgment (MWE Defendants)
This motion is granted, in part. Plaintiff and MWE entered into four engagement
letters in September 2015, January 2016, September 2016, and April 2017. (NYSCEF
102-104, Engagement Letters.) The engagement letters clearly document the scope of
the engagement: prepare tax returns and compilations. (Id.) There is no ambiguity and
plaintiff cannot create one. ( Universal Am. Corp. v National Union Fire Ins. Co. of
Pittsburgh, PA., 25 NY3d 675, 680 [2015] [citation omitted] [“[P]arties cannot create
ambiguity from whole cloth where none exists, because provisions ‘are not ambiguous
merely because the parties interpret them differently.”‘].)”

“This motion [BFP Defendants Summary Judgment] is granted. The BFP Defendants argue that plaintiff’s action is barred by a three-year statute of limitations. (CPLR 214[6].) However, plaintiff asserts that the continuous representation doctrine tolls the three-year statute of limitations. “The continuous representation doctrine tolls the running of the statute of limitations on a claim arising from the rendition of professional services only so long as the defendant continues to advise the client ‘in connection with the particular transaction which is the subject of the action and not merely during the continuation of a general professional relationship.”‘ (Booth v Kriegel, 36 AD3d 312, 314 [1st Dept 2006] [citations omitted]; see also Pace v Horowitz, 190 AD3d 619, 619 [1st Dept 2021] [citations omitted] [“The continuous representation doctrine toll does not apply based merely on the existence of an ongoing professional relationship, but only where the particular course of representation giving rise to the particular problems resulting in the alleged malpractice is ongoing.”].) BFP was terminated in 2015 and ceased providing any services to plaintiff until it was rehired in 2017. (NYSCEF 121, tr at 190:9-191 :2, 201 :23-202:8 [Green Depo]; NYSCEF 118, tr at 86:2-22, 100:6-24 [Schlussel berg Depo]; NYSCEF 119, tr at 100:25-101 :9, 104:3-21 [Steier Depo].) This is not continuous representation. BFP provided no services during the limitations period that
tolled the running of the statute of limitations. (See Booth, 36 AD3d at 314.) There was
no uninterrupted course of services. (Sendar Dev. Co., LLC v CMA Design Studio P.C.,
68 AD3d 500, 503 [1st Dept 2009] [Plaintiff must show that it relied upon an
uninterrupted course of services related the duty allegedly breached.].) Further, there
was no mutual understanding that BFP would perform future services. (McCoy v
Feinman, 99 NY2d 295, 306 [2002] [“The continuous representation doctrine tolls the
statute of limitations only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.”].)
As plaintiff filed this action on August 3, 2018, plaintiff’s action is barred against
the BFP Defendants for services provided before August 3, 2015. As to the alleged
malpractice for the six-month period of 2017 to 2018, plaintiff fails to raise an issue of
fact as to whether BFP departed from accepted standards of practice which was the
proximate cause of plaintiff’s loss. BFP’s engagement was to prepare tax returns and
compilations; not to audit BFP’s books or perform a forensic accounting. (NYSCEF
118, tr at 141-142 [Schlusselberg Depa]; NYSCEF 98, tr. at 104-105:19 [Steier Depa];
NYSCEF 120, tr. at 141 :3-142:21 [Plaintiff’s Expert Depa].) Just like with the MWE
Defendants, plaintiff cannot expand BFP’s engagement with its “know your client” theory for which it offers no legal support. Further, BFP was terminated before it could really begin its second engagement, which was identical to MWE’s engagement -to prepare tax returns and compilations. (Id.) Indeed, the tax returns could not be prepared before the year ended. (NYSCEF 120, tr. at 168:10-169:12 [Plaintiff’s Expert Depo].)”