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).”