In the professional malpractice world, which takes in all professionals other than physicians, we see the evolution of principals from medical malpractice to other professional malpractice claims.  As an example, continuous treatment evolved into continuous representation.  This process and how it is applied is discussed in  Jefferson Apts., Inc. v Mauceri  2016 NY Slip Op 26230 [52 Misc 3d 1012]  July 25, 2016  Ritholtz, J.

“The “continuous treatment” doctrine originated in medical malpractice cases to toll the running of the statute of limitations. This judicial exception was first encountered in 1902 in Gillette v Tucker(67 Ohio St 106, 65 NE 865 [1902]). The Gillette court held that using the surgery date as the starting point for calculating the statute of limitations would improperly burden the victim by forcing her to sue the surgeon while her treatment continued or forgo her cause of action. (Gillette, 67 Ohio St at 129, 65 NE at 871.) Over 100 years later, the “continuous treatment” doctrine, adopted by the New York courts, has evolved to cover not only medical malpractice, but, under the name of the “continuous representation” doctrine, has been extended to other professions and occupations, such as accountants.

Proper analysis and application of the “continuous representation” doctrine tend to produce just results, as opposed to mindless invocation of a limitations defense. The instant motion deals, inter alia, with the application of the “continuous representation” doctrine as it relates to the tolling of the statute of limitations in an action alleging accountant or auditor malpractice.”

“On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is time-barred, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see Bill Kolb, Jr., Subaru, Inc. v LJ Rabinowitz, CPA, 117 AD3d 978 [2014]; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017 [2010]). The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable or whether the action was actually commenced within the applicable limitations period (see Kitty Jie Yuan v 2368 W. 12th St., LLC, 119 AD3d 674 [2014]; Beizer v Hirsch, 116 AD3d 725 [2014]; Williams v New York City Health & Hosps. Corp., 84 AD3d 1358, 1359 [2011]).

Negligence claims made against a nonmedical professional, whether based in tort or contract, are governed by a three-year statute of limitations (see CPLR 214 [6]; see also Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538 [2004]; Chase Scientific Research v NIA Group, 96 NY2d 20 [2001]; Ackerman v Price Waterhouse, 84 NY2d 535 [1994]). As to the accounting malpractice claim, absent fraud, such a claim accrues when the harm occurs, which is “when all the facts necessary to the cause of action have occurred,” regardless of whether the plaintiff has yet become aware of the error (see Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994], supra; Mitschele v Schultz, 36 AD3d 249, 252 [2006]). Here, the alleged transactions on January 8, 2010, January 25, 2010 and February 9, 2010 would have been disclosed as a receivable in the financial statement for the year ending June 30, 2010, which was issued on February 7, 2011. With regards to these claims for auditing/accounting services rendered prior to June 17, 2012, they are dismissed.

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” (Zaref v Berk & Michaels, 192 AD2d 346, 348 [1993] [citations omitted]; see also Transport Workers Union of Am. Local 100 AFL-CIO v Schwartz, 32 AD3d 710, 713 [2006]; CLP Leasing Co., LP v Nessen, 12 AD3d 226, 227 [2004]; Dignelli v Berman, 293 AD2d 565, 566 [2002]). Thus, unless services relating to the particular transaction sued upon were rendered within the limitation{**52 Misc 3d at 1019} period, even the defendant’s “general and unfettered control of [the plaintiff’s] financial, tax and investment affairs . . . [is] insufficient to sustain the timeliness” of the action (Zaref, 192 AD2d at 348). Stated otherwise, where a professional advises a client in “a series of discrete and severable transactions” (Parlato v Equitable Life Assur. Socy. of U.S., 299 AD2d 108, 115 [2002], lv denied 99 NY2d 508 [2003]), the performance of services in each successive transaction does not serve to toll the running of the statute of limitations on any claim arising from the prior transaction (see Booth v Kriegel, 36 AD3d 312, 314 [2006]).

In this case, plaintiff does not dispute that the statute of limitations would be three years prior to the commencement of this action on June 17, 2015. Plaintiff disputes whether the financial statement for the period of July 1, 2010 through June 30, 2011 (the 2011 Financial Statement), prepared by Mauceri, is within the statutory period. Plaintiff argues that the claim for the 2011 Financial Statement accrued on the day Mauceri issued it to the Board, on or about September 28, 2012. Page one of Mauceri’s report dated September 28, 2012, provides, as herein relevant, as follows:

“”In my opinion, the financial statements and schedules referred to above present fairly, in all material respects, the financial position of The Jefferson Apartments, Inc., as of June 30, 2012 and June 30, 2011, and results of its operations for the years then ended in accordance with accounting principles generally accepted in the United States of America.”