147 A.D.2d 225 | N.Y. App. Div. | 1989
OPINION OF THE COURT
This action for accountant malpractice, negligence and breach of contract arises out of the alleged failure of defendant Steiner and Mondore, an accounting firm, to perform its yearly "review” examination of plaintiff’s financial records in a professionally competent manner. Plaintiff contends that
Depositions were conducted in the main action including a partial deposition of Barr as a nonparty witness. After Barr’s deposition, plaintiff filed a note of issue which defendants moved to strike because discovery requests were outstanding at that time. Supreme Court denied the motion to strike but granted defendants an additional three months for discovery. Plaintiff now appeals from that part of the court’s order granting discovery. Following this decision, plaintiff unsuccessfully moved to dismiss the three affirmative defenses. Plaintiff also appeals from that order.
Initially, we reject plaintiffs contention that Supreme Court erred in granting defendants an additional three months for discovery. Supreme Court is vested with broad discretion in insuring that adequate pretrial discovery has been accomplished (see, Plattsburgh Distrib. Co. v Hudson Val. Wine Co., 108 AD2d 1043, 1045; see also, Watts v Peekskill Bell, 147 AD2d 838). The general rule is that if a case is not ready for trial the note of issue must be stricken (Bycomp, Inc. v New York Racing Assn., 116 AD2d 895). Here, plaintiff does not dispute that certain of defendants’ discovery requests remained outstanding and that no bill of particulars had been served. Since plaintiff has not established that Supreme Court abused its discretion or that it has been prejudiced, the order permitting additional discovery must be affirmed (see, supra). The relief granted to defendants was less than that which could have been granted under the general rule.
Next, we find that Supreme Court acted properly in refusing to dismiss defendants’ affirmative defenses of contributory negligence and culpable conduct by plaintiff in the
The issue of the Statute of Limitations is more troubling. CPLR 214 (6) establishes a three-year limitation in all malpractice actions except those involving medical malpractice. Generally, the statute begins to run on the date that the malpractice occurs (see, Sosnow v Paul, 43 AD2d 978, affd 36 NY2d 780). However, under certain circumstances, the statute is tolled during the period of time when professional services are being rendered to a plaintiff. The continuous relationship rule was first applied in medical malpractice cases. The rule tolled the statute until the last treatment for the same or related condition which gave rise to the malpractice (Borgia v City of New York, 12 NY2d 151).
The same rule applies to other professionals including accountants (see, Wilkin v Pickup & Co., 74 Misc 2d 1025, 1027), but is not as easily applied. The mere recurrence of professional services does not constitute continuous representation where the later services performed were not related to
Supreme Court refused to dismiss defendants’ Statute of Limitations affirmative defense because it concluded that there was insufficient evidence to determine whether the action was time barred. We disagree. On the basis of the allegations of the complaint admitted in the answer, affidavits and discovery contained in the record, we can only conclude that if any malpractice occurred the statute did not begin to run until 1985. The action was commenced in 1986. During the period of 1982 through 1984, when most of the defalcations took place, there was a continuous representation of plaintiff by defendants and, therefore, plaintiff’s action is not time barred.
Kane, J. P., Casey, Mikoll and Yesawich, Jr., JJ., concur.
Order entered June 1,1988 affirmed, without costs.
Order entered December 15, 1988 modified, on the law, without costs, by reversing so much thereof as denied , plaintiff’s motion to dismiss the affirmative defense of the Statute of Limitations; motion granted to that extent and said affirmative defense dismissed; and, as so modified, affirmed.
The principles of comparative negligence have been found to be applicable in malpractice cases (see, e.g., Suria v Shiffman, 67 NY2d 87; Russo v Jess R. Rifkin, D.D.S., P.C., 113 AD2d 570; cf., Galvin v Cosico, 90 AD2d 656).