Citation Numbers: 178 Misc. 2d 176, 678 NYS2d 708
Judges: Goldstein
Filed Date: 7/24/1998
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
Plaintiff alleges that, in April 1994, she consulted with defendant accounting firm regarding the preparation and filing of an estate tax return for the estate of Walter Kelly, and retained
Defendant contends that the action is barred by the three-year Statute of Limitations applicable to accountant malpractice actions. (CPLR 214 [6], as amended by L 1996, ch 623.) In opposition to the motion to dismiss, plaintiff has improperly attempted to amend her complaint without leave of court, by annexing a proposed amended complaint to her opposition papers, whereby she asserts both a negligence and a breach of contract claim. (See, CPLR 3025 [a].)
In accordance with the amendment to CPLR 214 (6), the Statute of Limitations applicable to a cause of action for alleged malpractice, other than for medical, dental or podiatric malpractice, is three years, regardless whether the underlying theory is based upon contract or tort. (L 1996, ch 623.) The parties do not dispute that plaintiff’s claims, whether sounding in negligence or breach of contract, accrued at the latest on April 14, 1994, when she personally made tax payments on behalf of the estate of Walter Kelly. Plaintiff’s claims, therefore, accrued prior to the amendment’s effective date, on September 4, 1996.
At the time plaintiff’s claims accrued on April 14, 1994, the rule enunciated by the Court of Appeals in Santulli v Englert, Reilly & McHugh (78 NY2d 700, 709) permitted the application of a six-year Statute of Limitations, based upon a claim that the loss arose out of a contractual relationship. It has been recognized that, in a case where the claim is made and suit commenced more than three but less than six years after the event, and prior to the effective date of the amendment to CPLR 214 (6), the claim is timely interposed. (See, Dowd v Law Plan Hyatt Legal Servs., 249 AD2d 503 [2d Dept 1998]; Ruffolo v Garbarini & Scher, 239 AD2d 8; Vogel v Lyman, 246 AD2d 422; Romeo v Schmidt, 244 AD2d 860.) These cases held that an action commenced in reliance upon the Santulli rule, more than three years but less than six years after accrual of
It is plain that the 1996 amendment to CPLR 214 (6) had a legislative intent to counteract and overrule Santulli (supra), and to reaffirm that the only limitations period applicable to negligence and malpractice actions was three years, notwithstanding an alternate theory based upon breach of contract. (See, Russo v Waller, 171 Misc 2d 707; Panigeon v Alliance Nav. Line, 1997 WL 473385 [US Dist Ct, SD NY, Aug. 19, 1997, Scheindlin, J.].) However, as to those cases where a claim accrued more than three years before the effective date of the amendment, thus reducing or shortening the limitations period, since the prior six-year Santulli period could no longer be applied, due process considerations mandate that a party be afforded some reasonable opportunity and period following the enactment within which to pursue a claim. (See, Coastal Broadway Assocs. v Raphael, 246 AD2d 445 [commencement of action five and one-half months after September 4, 1996 was reasonable]; Panigeon v Alliance Nav. Line, supra; Alston v Transport Workers Union, 225 AD2d 424; cf., Ainbinder v Chernis, 248 AD2d 337; see also, Siegel, Conflicts Over Retroactivity of 3 New Laws: Malpractice, Employers, Summary Judgment, NYLJ, Mar. 31, 1997, at 1, col 1 [six months after effective date may be reasonable time within which to commence an action which would have been timely under Santulli, supra]-, compare, Kinsella v Kaplan, NYLJ, Feb. 24, 1998, at 30, col 6.) Such constitutional requisite, however, has been met herein, since plaintiff had more than seven months following the September 1996 amendment to timely file her lawsuit, before expiration of the three-year limitations period, i.e., until April 1997. In my view, since she failed to do so, her malpractice claim, whatever appellation may be ascribed, namely, negligence, malpractice or breach of contract, is barred by the operative three-year Statute of Limitations.
Accordingly, upon the foregoing, defendant’s motion to dismiss the complaint is granted in all respects, and the action is dismissed.