This is an estate legal malpractice case in which "In 1993, nonparty Ricki Singer created an irrevocable inter vivos trust for the benefit of herself and her son as a remainderman, with plaintiff Frieda Tydings, her aunt, designated as the sole trustee. The trust agreement did not require plaintiff to offer an accounting, nor is there any indication that the grantor ever requested an accounting until on or about August 20, 2003, over six years later, when she filed a petition in the Surrogate’s Court for a compulsory accounting and the suspension of Steven Singer’s authority pending a proceeding to remove him as trustee.

Plaintiff retained defendant Greenfield, Stein & Senior, LLP to represent her in the proceeding. While the firm submitted a notice of appearance dated September 9, 2003, it did not thereafter file an answer to the petition or any other response. As a result, on September 24, 2003, the Surrogate issued an order directing both plaintiff and successor trustee Steven Singer to provide an accounting.

Plaintiff thereafter retained a new attorney, and her final accounting was filed on November 14, 2004. However, the grantor objected to the accounting and sought to surcharge plaintiff with respect to certain matters that had purportedly occurred prior to her resignation as trustee. Plaintiff’s new lawyer moved to dismiss the objections, relying on the applicable six year statute of limitations (CPLR 213).

The Surrogate denied plaintiff’s motion, holding that "the statute of limitations can begin to run on the beneficiary’s right to an accounting only where the former fiduciary has failed to have accounted after a reasonable time to do so has passed" (Matter of Singer, 12 Misc 3d 621, 625 [2006]). This Court affirmed, but did so on the ground that the "former trustee waived her statute of limitations defense by failing to raise it in response to the grantor’s petition to compel an accounting,

Plaintiff former trustee then commenced this legal malpractice action against her first attorneys. Defendant law firm moved for dismissal on grounds of collateral estoppel, arguing that the Surrogate’s determination in Matter of Singer, (12 Misc 3d at 621, supra), rejecting the statute of limitations defense, which decision was subsequently affirmed, established that plaintiff could not have prevailed in the accounting proceeding in any event.

We therefore conclude that collateral estoppel cannot properly be relied upon to preclude plaintiff from demonstrating that but for defendant’s alleged malpractice, she would have prevailed in that accounting action, and the motion to dismiss is therefore denied.

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