ESTATE OF DAVID v. Stephen Burr, Defendant.

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Supreme Court, Appellate Division, First Department, New York.

ESTATE OF Herman DAVID, etc., et al., Plaintiffs-Appellants, v. RASHBA & POKART, et al., Defendants-Respondents, Stephen Burr, Defendant.

Decided: October 29, 1998

Before ROSENBERGER, J.P., and NARDELLI, MAZZARELLI, ANDRIAS and SAXE, JJ. Edward G. Bailey, for Plaintiffs-Appellants. Thomas R. Manisero, for Defendants-Respondents.

Order, Supreme Court, New York County (Richard Lowe III, J.), entered September 8, 1997, which, in an action against accountants for professional malpractice based on allegedly negligent advice concerning the tax deductibility of losses generated by an entity in which plaintiffs invested in 1981 and 1982, and for which they claimed tax deductions for the tax years 1981 through 1985, granted defendants-respondents' motion to dismiss the complaint as barred by the Statute of Limitations, unanimously modified, on the law and the facts, to grant plaintiffs Walter David, Marian David, Sheldon J. David, and Marilyn David leave to replead their causes of action so as to allege continuous representation tolling the Statute of Limitations, and otherwise affirmed, without costs.   Order, same court and Justice, entered March 5, 1998, which, insofar as appealable, denied plaintiffs' motion to renew, unanimously affirmed, without costs.

Although the complaint itself fails to allege any basis for tolling the Statute of Limitations, we grant leave to replead because plaintiffs' other submissions are sufficient to support an amended complaint alleging that defendant accounting firm continued after the date three years prior to commencement of this action to render professional services to plaintiffs Walter David, Marian David, Sheldon J. David, and Marilyn David in support of their litigation with the IRS arising out of the taking of the deductions (CPLR 214[6];  3211[e];  see, Weiss v. Manfredi, 83 N.Y.2d 974, 977, 616 N.Y.S.2d 325, 639 N.E.2d 1122;  Zaref v. Berk & Michaels, 192 A.D.2d 346, 595 N.Y.S.2d 772).   That the accounting firm withdrew as such plaintiffs' counsel of record in such tax litigation more than three years before the commencement of the instant action is of no moment, given evidence tending to show that the firm continued to render nonrepresentational assistance to plaintiffs in connection with their defense of good faith and reasonable reliance on the firm's advice concerning the transactions that are the subject of this action.   The notice of appeal from the order of dismissal is deemed to name plaintiffs Sheldon J. David, in his individual capacity, and Marilyn David, as plaintiffs-appellants, and the caption amended accordingly (CPLR 2001).

MEMORANDUM DECISION.