Summary
assuming without deciding the adoption of American Pipe tolling, plaintiff's claim was untimely with or without the benefit of tolling
Summary of this case from Chavez v. Occidental Chem. Corp.Opinion
May 15, 1979
Order, Supreme Court, New York County, entered November 17, 1978, and judgment, entered thereon November 29, 1978, dismissing the complaint, unanimously affirmed, with one bill of costs. Special Term correctly dismissed the complaint. It was erroneous, however, to base dismissal on two prior orders which, in a related class action, had denied plaintiffs' motion to intervene to assert the same cause of action as here. The genesis of both orders was the improper premise that plaintiffs did not have a valid cause of action for accountant's malpractice. The complaint should, however, be dismissed for untimeliness. Even allowing for a tolling of the three-year Statute of Limitations (CPLR 214, subd 6) during the pendency of the class action (see American Pipe Constr. Co. v. Utah, 414 U.S. 538, 561), the statute has run and the action is time barred.
Concur — Sullivan, J.P., Lane, Markewich, Silverman and Ross, JJ.