David v. Rashba

Appellate Division of the Supreme Court of New York

David v. Rashba

254 A.D.2d 235, 679 N.Y.S.2d 59, 1998 N.Y. App. Div. LEXIS 11380

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 29, 1998

StatusPublished

Cited by1 cases

This text of 254 A.D.2d 235 (David v. Rashba) 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

David v. Rashba, 254 A.D.2d 235, 679 N.Y.S.2d 59, 1998 N.Y. App. Div. LEXIS 11380 (N.Y. Ct. App. 1998).

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Opinion

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered September 8, 1997, which, in an action against accountants for professional malpractice based on allegedly negligent advice concerning the tax deductibility of losses generated by an entity in which plaintiffs invested in 1981 and 1982, and for which they claimed tax deductions for the tax years 1981 through 1985, granted defendants-respondents’ motion to dismiss the complaint as barred by the Statute of Limitations, unanimously modified, on the law and the facts, to grant plaintiffs Walter David, Marian David, Sheldon J. David, and Marilyn David leave to replead their causes of action so as to allege continuous representation tolling the Statute of Limitations, and otherwise affirmed, without costs. Order, same court and Justice, entered March 5, 1998, which, insofar as appealable, denied plaintiffs’ motion to renew, unanimously affirmed, without costs.

Although the complaint itself fails to allege any basis for tolling the Statute of Limitations, we grant leave to replead because plaintiffs’ other submissions are sufficient to support an amended complaint alleging that defendant accounting firm continued after the date three years prior to commencement of this action to render professional services to plaintiffs Walter David, Marian David, Sheldon J. David, and Marilyn David in support of their litigation with the IRS arising out of the taking of the deductions (CPLR 214 [6]; 3211 [e]; see, Weiss v Manfredi, 83 NY2d 974, 977; Zaref v Berk & Michaels, 192 AD2d 346). That the accounting firm withdrew as such plaintiffs’ counsel of record in such tax litigation more than three years before the commencement of the instant action is of no moment, given evidence tending to show that the firm continued to render nonrepresentational assistance to plaintiffs in connection with their defense of good faith and reasonable reliance on the firm’s advice concerning the transactions that are the subject of this action. The notice of appeal from the order of dismissal is deemed to name plaintiffs Sheldon J. David, in his individual capacity, and Marilyn David as plaintiffs-appellants, and the caption amended accordingly (CPLR 2001). [236]*236Concur — Rosenberger, J. P., Nardelli, Mazzarelli, Andidas and Saxe, JJ.

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Order, Supreme Court, New York County (Richard Lowe, III, J.), entered September 8, 1997, which, in an action against accountants for professional malpractice based on allegedly negligent advice concerning the tax deductibility of losses generated by an entity in which plaintiffs invested in 1981 and 1982, and for which they claimed tax deductions for the tax years 1981 through 1985, granted defendants-respondents’ motion to dismiss the complaint as barred by the Statute of Limitations, unanimously modified, on the law and the facts, to grant plaintiffs Walter David, Marian David, Sheldon J. David, and Marilyn David leave to replead their causes of action so as to allege continuous representation tolling the Statute of Limitations, and otherwise affirmed, without costs. Order, same court and Justice, entered March 5, 1998, which, insofar as appealable, denied plaintiffs’ motion to renew, unanimously affirmed, without costs.

Although the complaint itself fails to allege any basis for tolling the Statute of Limitations, we grant leave to replead because plaintiffs’ other submissions are sufficient to support an amended complaint alleging that defendant accounting firm continued after the date three years prior to commencement of this action to render professional services to plaintiffs Walter David, Marian David, Sheldon J. David, and Marilyn David in support of their litigation with the IRS arising out of the taking of the deductions (CPLR 214 [6]; 3211 [e]; see, Weiss v Manfredi, 83 NY2d 974, 977; Zaref v Berk & Michaels, 192 AD2d 346). That the accounting firm withdrew as such plaintiffs’ counsel of record in such tax litigation more than three years before the commencement of the instant action is of no moment, given evidence tending to show that the firm continued to render nonrepresentational assistance to plaintiffs in connection with their defense of good faith and reasonable reliance on the firm’s advice concerning the transactions that are the subject of this action. The notice of appeal from the order of dismissal is deemed to name plaintiffs Sheldon J. David, in his individual capacity, and Marilyn David as plaintiffs-appellants, and the caption amended accordingly (CPLR 2001). [236]*236Concur — Rosenberger, J. P., Nardelli, Mazzarelli, Andidas and Saxe, JJ.

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Bluebook (online)

254 A.D.2d 235, 679 N.Y.S.2d 59, 1998 N.Y. App. Div. LEXIS 11380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-v-rashba-nyappdiv-1998.

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