Booth v. Kriegel

36 A.D.3d 312, 825 N.Y.S.2d 193
CourtAppellate Division of the Supreme Court of the State of New York
DecidedNovember 16, 2006
StatusPublished
Cited by14 cases

This text of 36 A.D.3d 312 (Booth v. Kriegel) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Booth v. Kriegel, 36 A.D.3d 312, 825 N.Y.S.2d 193 (N.Y. Ct. App. 2006).

Opinion

OPINION OF THE COURT

Friedman, J.

The issue presented by this appeal is whether, under the doctrine of continuous representation, the running of the statute of limitations on a cause of action for accounting malpractice was tolled for a period of more than a decade and a half during which the accountant made the same mistake in preparing successive tax returns for his client. We hold that the continuous representation doctrine does not apply under these facts because, regardless of the common mistake affecting the tax returns, each return was a separate and discrete transaction. Therefore, any claim arising from the preparation of each successive tax return accrued, and the statute of limitations on that claim began to run, upon the completion of the services relating to that return.

Plaintiff, a self-employed United States citizen, has resided in the United Kingdom at all times relevant to this dispute. For each year from 1969 through 2001, plaintiff retained defendant Kriegel to prepare and file her United States federal and state income tax returns. Plaintiff alleges that, in 2002, new accountants she hired advised her that she had unnecessarily paid United States Social Security taxes for the years 1985 through 2001. Plaintiff learned that she had not owed these taxes because a 1985 “Totalization Agreement” between the United States and the United Kingdom provided that a self-employed citizen of either country who resided in the other country was required to pay self-employment taxes only in his or her country of residence. Kriegel admits that he did not advise plaintiff of the Totalization Agreement and its application to her tax liability. Although plaintiff obtained refunds of the Social Security taxes she paid for 1999, 2000 and 2001, she was not permitted under applicable law to obtain refunds for the earlier years.

[314]*314In September 2003, plaintiff commenced this action, in which she seeks to recover her unrefunded tax overpayments for the years 1985 through 1998 (allegedly totaling $150,000) from Kriegel. After answering the complaint, Kriegel moved for summary judgment dismissing the complaint as time-barred. In support, Kriegel submitted an affidavit attesting that he had sent plaintiff a copy of her tax return for 1998 (the last year for which recovery is sought) in April 1999, the same month he completed and filed the return. Kriegel argued that, because he did not perform any further services relating to the 1998 return after April 1999, plaintiffs claim was barred by the three-year statute of limitations for nonmedical malpractice actions (CPLR 214 [6]) at the time she filed her complaint in September 2003. In opposition, plaintiff contended that, under the doctrine of continuous representation, her claim did not accrue until Kriegel completed work on the last return he prepared for her, which, as previously noted, was the 2001 return. Plaintiff argued that the action was timely because Kriegel completed work on the 2001 return less than three years before the complaint was filed in September 2003. Supreme Court agreed with plaintiff, and denied the motion. We now reverse.

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 period, even the defendant’s “general and unfettered control of [the plaintiffs] financial, tax and investment affairs” — and the evidence here shows that Kriegel played a far lesser role — 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.

[315]*315In this case, the particular transactions at issue are the 14 annual federal tax returns that Kriegel prepared and filed on plaintiff’s behalf for the years 1985 through 1998. It is uncontroverted that, under the rule that a claim for accounting malpractice “accrues upon the client’s receipt of the accountant’s work product” (Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994]), plaintiff’s claim based on the last of these returns accrued no later than April 1999, more than three years before the commencement of this action in September 2003.

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Cite This Page — Counsel Stack

Bluebook (online)
36 A.D.3d 312, 825 N.Y.S.2d 193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/booth-v-kriegel-nyappdiv-2006.