Benyaminpour v Lipton 2026 NY Slip Op 05072 August 26, 2026 Appellate Division, Second Department is the kind of appellate decision where the outlying claims are trimmed and the central claim is wiped out. Here, accounting malpractice was dismissed as late.

“In November 2020, the plaintiff commenced this action against the defendants, Alan Lipton, an accountant, and his accounting firm, Lipton & Associates, LLP, arising out of accounting services provided by the defendants to the plaintiff and his former business partners in two business ventures related to real property (hereinafter the business entities). In an amended complaint, the plaintiff alleged, inter alia, causes of action sounding in fraud, aiding and abetting fraud, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, breach of contract, civil conspiracy, and professional negligence. Prior to commencing this action, the plaintiff and his brother commenced a different action in 2014 against the same former business partners, among others, alleging, inter alia, that the former business partners “wrongfully induced,” “fraudulently induced,” and “directed” Lipton to incorrectly complete tax returns and issue K-1s with regard to the business entities, as part of a scheme to eliminate the plaintiff’s interests in said entities and extinguish certain liabilities owed to the plaintiff. In sum and substance, the plaintiff has repeated those allegations in this action against the defendants.

Following the commencement of this action, the defendants moved pursuant to CPLR 3211(a) to dismiss the amended complaint. The plaintiff opposed. In an order entered December 13, 2021, the Supreme Court granted the motion. The plaintiff appeals.”

“Contrary to the plaintiff’s contention, the Supreme Court properly granted, pursuant to CPLR 3211(a)(7), those branches of the defendants’ motion which were to dismiss the causes of action alleging fraud, aiding and abetting fraud, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty as duplicative of the cause of action alleging professional negligence in the nature of accounting malpractice. The causes of action arose from the same set of facts and do not allege distinct damages (see Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 123 AD3d 901, 902).

“On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired” (Collins-Genova v Louros, 204 AD3d 748, 749 [internal quotation marks omitted]; see Weinberg Real Estate Affiliates, LLC v Weinberg, 231 AD3d 775, 776). “If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period” (Weinberg Real Estate Affiliates, LLC v Weinberg, 231 AD3d at 776 [internal quotation marks omitted]).

“An action to recover damages for accounting malpractice must be commenced within three years” (Getzel Schiff & Pesce, LLP v Shtayner, 233 AD3d 758, 759; see CPLR 214[6]; Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 155 AD3d at 803). “‘A cause of action alleging professional malpractice against an accountant accrues upon the client’s receipt of the accountant’s work product'” (Getzel Schiff & Pesce, LLP v Shtayner, 233 AD3d at 759, quoting Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 155 AD3d at 803). Here, the defendants established, prima facie, that the cause of action alleging professional negligence in the nature of accounting malpractice accrued more than three years before the plaintiff commenced this action. In opposition, the plaintiff failed to raise a question of fact as to whether this action was commenced within the applicable statute of limitations period, or whether the statute of limitations was tolled or otherwise inapplicable (see id.). Accordingly, the Supreme Court properly directed dismissal of the cause of action alleging professional negligence in the nature of accounting malpractice as time-barred pursuant to CPLR 3211(a)(5).”

Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.