70 A.D.2d 542 | N.Y. App. Div. | 1979
—Order, Supreme Court, New York County, entered November 17, 1978, and judgment, entered thereon November 29, 1978, dismissing the complaint, unanimously affirmed, with one bill of costs. Special Term correctly dismissed the complaint. It was erroneous, however, to base dismissal on two prior orders which, in a related class action, had denied plaintiffs’ motion to intervene to assert the same cause of action as here. The genesis of both orders was the improper premise that plaintiffs did not have a valid cause of action for accountant’s malpractice. The complaint should, however, be dismissed for untimeliness. Even allowing for a tolling of the three-year Statute of Limitations (CPLR 214, subd 6) during the pendency of the class action (see American Pipe & Constr. Co. v Utah, 414 US 538, 561), the statute has run and the action is time barred. Concur— Sullivan, J. P., Lane, Markewich, Silverman and Ross, JJ.