| Giarratano v Silver |
| 2007 NY Slip Op 09844 [46 AD3d 1053] |
| December 13, 2007 |
| Appellate Division, Third Department |
| Janet A. Giarratano, Appellant, v Kenneth S. Silver,Respondent. |
—[*1] Costello, Cooney & Fearon, P.L.L.C., Albany (Nicole M. Marlow of counsel), forrespondent.
Kane, J. Appeal from an order of the Supreme Court (Williams, J.), entered January 17, 2007in Saratoga County, which, among other things, granted defendant's motion for summaryjudgment dismissing the complaint.
In the 1980s, defendant, a certified public accountant, began preparing plaintiff's annual taxreturns. When plaintiff received life insurance proceeds after her husband's death in 1995, sheturned to defendant for investment advice. Defendant met with plaintiff, then sent her a letterrecommending how she should invest this money. One of the proposed investments was for$100,000 in J & B Management Company bonds, a high-risk investment with returns of 12%.Defendant helped plaintiff complete the subscription documents and forwarded them on to J &B. Defendant contends that he assisted plaintiff as a "very close" friend and received nocompensation for his efforts, although J & B's president paid defendant fees for tax consultingservices. The parties dispute whether defendant discussed other types of options, whether heexplained the risks associated with this investment and whether he gave plaintiff a prospectusprior to her investing in J & B. Plaintiff acknowledges that she received a prospectus directlyfrom the company after her subscription, which delineated the risks involved in the investment.Significantly, plaintiff does not allege any specific contact with defendant concerning thecontents of the prospectus after she received that document. Defendant continued to prepareplaintiff's annual tax returns through the 2002 tax year.[*2]
J & B paid plaintiff the expected monthly amount for twoyears. It was acquired by another company in 1997. Plaintiff averred that this aroused hersuspicions so she called defendant, who allegedly advised her not to sell because her investmentwas safe. The monthly payments continued until early 2000, shortly before the acquiringcompany filed for bankruptcy. Plaintiff corresponded with defendant about this situation, anddefendant responded by letter in February 2004 explaining what he knew about the bankruptcy.
Plaintiff commenced this action in June 2004, containing seven causes of action related todefendant's advice regarding her investment.[FN*]Following discovery, defendant moved for summary judgment dismissing the complaint. Plaintiffcross-moved for summary judgment. Supreme Court denied the cross motion and granteddefendant's motion, concluding that all of plaintiff's causes of action were precluded by thestatutes of limitations. On plaintiff's appeal, we affirm.
The applicable statutes of limitations bar all of plaintiff's causes of action and none of thestatutes is tolled. The claim for accounting malpractice is governed by a three-year statute oflimitations (see CPLR 214 [6]; Ackerman v Price Waterhouse, 84 NY2d 535,541 [1994]). This cause of action accrued in 1995, when defendant assisted plaintiff in procuringthe J & B investment (see Williamson vPricewaterhouseCoopers LLP, 9 NY3d 1, 7-8 [2007]; Ackerman v PriceWaterhouse, 84 NY2d at 541). The statute of limitations in a malpractice case may be tolled"where the parties engaged in a continuous professional relationship," but only "where thecontinuous representation was in connection with the particular transaction which is the subjectof the action" (Mitschele v Schultz,36 AD3d 249, 253 [2006] [emphasis omitted]). A recurring use of a professional's servicesdoes not constitute continuous representation if the later services are not related to the originalservices which gave rise to the action (see id.; Booth v Kriegel, 36 AD3d 312, 314 [2006]). As recently held bythe Court of Appeals, utilizing an accounting firm's services for annual tax preparation orauditing services constitutes the provision of separate and discrete services for each year,precluding application of the continuous representation doctrine (see Williamson vPricewaterhouseCoopers LLP, 9 NY3d at 10-11; Booth v Kriegel, 36 AD3d at 313).Defendant's preparation of plaintiff's tax returns through the 2002 tax year did not toll the statuteof limitations. Although plaintiff alleges that defendant provided her with continuous investmentadvice through 2004, mentioning the J & B investment in connection with annual tax preparationdid not constitute representation related to the original investment advice given in 1995.Plaintiff's assertion of a few calls or sporadic correspondence in relation to the J & B investmentdid not show the "mutual understanding" of both parties that is required to establish continuousrepresentation (see Williamson v PricewaterhouseCoopers LLP, 9 NY3d at 11).
Contrary to plaintiff's assertions, no toll arises from defendant's failure to affirmatively statethat he was not a licensed securities broker and was not authorized to sell securities. There is noproof that defendant ever stated or implied that he was a securities broker, or that plaintiffthought he was. Thus, there was certainly no fraudulent concealment of his status (seeMitschele v Schultz, 36 AD3d at 254-255).[*3]
Similarly, there was no concealment of divided loyaltiesso as to constitute a breach of a fiduciary duty, as argued by plaintiff. Defendant received a freetrip and golf outing from J & B and one of its brokers, but that occurred several years prior toplaintiff's investment. Payment of accounting fees to defendant by the president of J & B forpersonal accounting services was not a commission or payment related to plaintiff's investment inJ & B and did not create a conflict of interest. The record is devoid of any compensation,commissions or payments to defendant from any source in relation to plaintiff's investment. Evenif divided loyalties were proven, plaintiff should have made further inquiries after she receivedthe prospectus disclosing the risks of the investment. Thus, the statute of limitations was nottolled on the breach of fiduciary duty cause of action.
Equitable estoppel is not available to prevent defendant's assertion of statute of limitationsdefenses. To enjoy the benefits of estoppel, plaintiff was required to show that she was inducedto refrain from timely commencing an action due to defendant's affirmative wrongdoing (seeMitschele v Schultz, 36 AD3d at 253; Coopersmith v Gold, 172 AD2d 982, 983[1991]). She failed to present evidence of any wrongdoing by defendant subsequent to her receiptof the prospectus which prevented her from commencing an action or reasonably lulled her into aposition of inaction.
The fraud claim is also barred by the statute of limitations. A fraud cause of action must becommenced within six years from the time the fraud was committed or within two years from thetime the fraud was discovered or could have been discovered through reasonable diligence(see CPLR 213 [8]). At the time she received the prospectus which indicated thehigh-risk nature of the investment, plaintiff was on notice of what she now alleges was fraud bydefendant. Plaintiff testified at her deposition that she became suspicious when J & B was takenover by a new company in 1997. That company ceased making monthly payments to her in 2000and she was informed of the company's bankruptcy filing later that year. She could havediscovered any alleged fraud at least by that time, making her 2004 filing of this action untimely.
Plaintiff's breach of contract claim was merely a rephrasing of the malpractice claim and, inany event, was covered by a three-year statute of limitations (see CPLR 214 [6];Mitschele v Schultz, 36 AD3d at 252). As the various applicable statutes of limitationsbar all of plaintiff's causes of action, dismissal of the complaint was appropriate.
Cardona, P.J., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: Plaintiff conceded in SupremeCourt that her General Business Law § 349 claim is not viable and she does not argue insupport of that claim here.