Leonard v Kweit, Mantell & DeLucia, LLP

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Leonard v Kweit, Mantell & DeLucia, LLP 2013 NY Slip Op 33118(U) December 9, 2013 Supreme Court, New York County Docket Number: 650629/2013 Judge: Eileen A. Rakower Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 12/12/2013 1] INDEX NO. 650629/2013 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 12/12/2013 SUPREME COURT OF THE STATE OF NEW YORK ~--~---~- __N_Ji~ll;tifllffi~~~~~~y~i~R I ·Index Number : 650629/2013 PART :ESTATE OF ELEANOR LEONARD /!:J- ~vs IKWEIT, MANTELL & DELUCIA, INDEX N O . - - - - - Sequence Number : 001 MOTION D A T E - - - - .DISMISS MOTION SEQ. NO. _ __ I The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits--------------~-..,,VJ_:___ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ v _ __ I No(s)._ _ _ __ I No(s). _ _ _ __ I No(s). _ _ _ __ Upon the foregoing papers, it is ordered that this motion is w (,) ~ Cl) ::::> .., 0 t- o w 0:: 0:: w u.. w 0:: >- ..:.:.. ~ z ::::> 0 u.. Cl) t- c( (,) w ..J ..J w ~ w 0:: (!) z 3:: 0:: Cl) - 0 w ..J ..J Cl) 0 c( (,) u.. ~ z 0 t- ~ 0:: 0 0 ::!: u.. HON. 1. CHECK ONE: ..................................................................... ~ EILEEN A. RAKOWER ,J.S.C. Dated: D ~NON-FINAL DISPOSITION CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 GRANTED 0 DENIED 3. CHECK IF APPROPRIATE: ................................................ 0 SETILE ORDER 0DONOTPOST []GRANTED IN PART 0 OTHER LJ SUBMIT ORDER 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 15 ------------------------------------------------------------------)( JAY LEONARD, an individual, as E)(ECUTOR OF THE ESTATE OF ELEANOR LEONARD, Index No.:650629/2013. Plaintiff, - against - Decision and Order Motion Seq: 001 KWEIT, MANTELL & DeLUCIA, LLP and LAWRENCE KWEIT, Defendants. -------------------------------------------------------------------)( HON. EILEEN A. RAKOWER, J.S.C. This is an action for negligence/professional malpractice and breach of contract. Plaintiff Jay Leonard, as Executor of The Estate of Eleanor Leonard, commenced this action on May 17, 2013. The Complaint alleges that Defendants Kweit, Mantell & DeLucia, LLP, and Lawrence Kweit (collectively, "Defendants") were retained by Eleanor Leonard, now deceased, "to advise her on her personal and business taxes and tax compliance and on ways to legitimately reduce her tax liability since at least 2000," and "[t]he scope of defendant's engagement also included the preparation of tax filings, the review of plaintiffs financial records to determine which legitimate deductions plaintiff was entitled to take, and to handle any issues that any tax authorities raised concerning Ms. Leonard's tax filings." Specifically, the Complaint alleges that "Defendants advised Ms. Leonard with respect to, and prepared Ms. Leonard's tax returns for inter alia tax years 2003 through 2009. Plaintiff alleges that on or about March 2, 2007, Plaintiff received notices of deficiency from the IRS for tax years 2003 and 2004, and later, received additional notices for tax years 2005, 2006, and 2007, arising out of Ms. Leonard's expense [* 3] deductions that were found to either be not properly supported by records or not legitimate items for deduction. The Complaint alleges that Defendants' preparation of tax returns for Eleonard Leonard for the tax years 2003, 2004, 2005, 2006, and 2007 "fell below the accepted standard of practice" in that preparing these returns Defendants "took as deductions, expense items which the IRS found were so egregiously improper and unsupported by valid documentation that the IRS assessed "accuracy penalties." The Complaint further alleges that after the IRS assessed these penalties, "Defendants undertook on behalf of Ms. Leonard and the Estate to handle the IRS audit and advise Ms. Leonard and the Estate and, as appropriate, negotiate with the relevant tax authorities to address the deficiencies and understatements of income and the interest and penalties assessed by the tax authorities." Presently before the Court is Defendants' motion pursuant to CPLR §§321 l(a)(l) and 214(6) to dismiss the Complaint in its entirety on the grounds that Plaintiffs claims for negligence/professional malpractice and breach of contract are both barred by the applicable statute of limitations as they both arise from allegations of alleged negligence on Defendants' part. Defendants submit the attorney affirmation of Ronald S. Herzog, which annexes a copy of the Complaint, a copy of the February 22, 2010 IRS correspondence, and a copy of correspondence dated May 21, 2010 from plaintiff Jay Leonard to the IRS making payment of $169,204.41 to the IRS. Plaintiff opposes. CPLR §3211 (a)( 1) provides, in relevant part, "a party may move for judgment dismissing one or more causes of action asserted against him on the grounds that" "a defense is founded upon documentary evidence." On a motion to dismiss pursuant to CPLR §321 l(a)(l), "the court may grant dismissal when documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." (Beal Sav. Bank v. Sommer, 8 NY3d 318, 324 [2007]) (internal citations omitted). "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v. Ginzburg, 43 N.Y.2d 2 [* 4] 268, 275 [1977]) (emphasis added). A movant is entitled to dismissal under CPLR §3211 when his or her evidentiary submissions flatly contradict the legal conclusions and factual allegations of the complaint. (Rivietz v. Wolohojian, 38 A.D.3d 301 [1st Dept. 2007]) (citation omitted). A cause of action charging that a professional failed to perform services with due care and in accordance with the recognized and accepted practices of the profession is governed by the three-year statute of limitations applicable to negligence actions. (See, CPLR §214[6]). As set forth in ATC Healthcare Inc. v. Goldstein, Golub & Kessler LLP, 28 Misc. 3d 1237(A), *3 (N.Y. Sup. July 26, 2010): The continuous representation doctrine is an exception to the Statute of Limitations and applies only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim. Symbol Technologies, Inc. v. Deloitte & Touche, LLP, supra, at p. 195 (citation omitted). That is, "the continuous representation must be in connection with the particular transaction which is the subject of the action and not merely during the continuation of a general professional relationship." Zarefv. Berk & Michaels, P.C., 192 A.D.2d 346, 347-48 (1st Dept.1993) (citations omitted). "[T]he facts are required to demonstrate continued representation in the specific matter directly under dispute." Zaref v. Berk & Michaels, P.C., supra, at p. 348. ATC Healthcare Inc., 28 Misc. 3d 1237(A) at *3. Here, the Complaint alleges that after the IRS assessed these penalties, "Defendants undertook on behalf of Ms. Leonard and the Estate to handle the IRS audit and advise Ms. Leonard and the Estate and, as appropriate, negotiate with the relevant tax authorities to address the deficiencies and understatements of income and the interest and penalties assessed by the tax authorities." Plaintiff submits the attorney affirmation of Lee Squitieri, which avers that Defendants continued to represent Ms. Leonard until at least December 17, 2010 with full power of attorney. Attached as Exhibit 1 is a letter from Defendants to the IRS dated December 17, 2010 written on behalf of Plaintiff with "POA" which sets forth an explanation for "the substantial understatement of her taxes for all years audited." 3 [* 5] Defendants' evidentiary submissions do not flatly contradict the legal conclusions and factual allegations of the Complaint and do not establish that the statute of limitations has run on Plaintiffs claims as a matter of law to warrant dismissal at this juncture. Wherefore, it is hereby, ORDERED that defendants' motion to dismiss is denied. This constitutes the decision and order of the court. All other relief requested is denied. DATED: December 9, 2013 ~~ ----- EILEEN A. RAKOWER, J.S.C. 4

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