Kearney v. Firley

234 A.D.2d 967, 651 N.Y.S.2d 781, 1996 N.Y. App. Div. LEXIS 13712

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendants’ cross motion to dismiss the fourth cause of action alleging accountant malpractice upon the ground that it is barred by the three-year Statute of Limitations (see, CPLR 214 [6]). Generally, the statute begins to run on the date the malpractice occurs (see, Hall & Co. v Steiner & Mondore, 147 AD2d 225, 228), which is "the date the accountant’s work product is received by the client since this is the first time the client can rely on the alleged negligent work product” (Ackerman v Price Waterhouse, 84 NY2d 535, 538, mot to amend remittitur denied 85 NY2d 836). Under limited circumstances, not present here, the statute is tolled pursuant to the continuous representation doctrine. "The mere recurrence of professional services does not constitute continuous representation where the later services performed were not related to the original services” (Hall & Co. v Steiner & Mondore, supra, at 228-229; see, Muller v Sturman, 79 AD2d 482, 484; Goulding v Solomon, 123 Misc 2d 954, 956). In the present case, the continuous representation doctrine does not apply because "there was no continuity of services with respect to the specific tax condition involved herein” (Goulding v Solomon, supra, at 956). The record establishes that the work that is the basis for the malpractice cause of action was completed more than three years before this action was commenced. Lastly, from our review of the record, we conclude that plaintiff’s argument that defendants committed fraudulent acts by concealing their omissions in the preparation of plaintiff’s tax returns and, thus, impeded plaintiff’s discovery of defendants’ misdeeds is raised for the first time on appeal and is not properly before us (see, Ciesinski v Town of Aurora, 202 AD2d 984, 985). (Appeal from Order of Supreme Court, Onondaga County, Nicholson, J.—Dismiss Cause of Action.) Present—Lawton, J. P., Fallon, Wesley, Balio and Davis, JJ.