Majority
In an action, inter alia, to recover damages for accounting malpractice, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Driscoll, J.), dated July 12, 2013, which, upon an order of the same court dated June 20, 2013, granting the defendants’ separate motions pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against each of them and denying the plaintiff’s cross motion for leave to amend the amended complaint, is in favor of the defendants and against it dismissing the complaint. The notice of appeal from the order dated June 20, 2013, is deemed to be a notice of appeal from the judgment dated July 12, 2013 (see CPLR 5512 [a]).
Ordered that the judgment is affirmed, with one bill of costs.
The Supreme Court properly granted that branch of the motion of the defendant Marcum, LLP, formerly known as Marcum & Kliegman, LLP (hereinafter Marcum), which was to dismiss the accounting malpractice cause of action insofar as asserted against it as time-barred. When moving to dismiss a cause of action as time-barred pursuant to CPLR 3211 (a) (5), a defendant must establish, prima facie, that the time in which to sue has expired (see Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790 , 792 [2015]; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733 , 734-735 [2015]). Upon the defendant’s satisfaction of this burden, the burden shifts to the plaintiff to aver evidentiary facts establishing that the cause of action was timely or to raise a question of fact as to whether the cause of action was timely (see Lake v New York Hosp. Med. Ctr. of Queens, 119 AD3d 843 , 844 [2014]; Lessoff v 26 Ct. St. Assoc., LLC, 58 AD3d 610 , 611 [2009]). The plaintiff may do so by averring evidentiary facts establishing that the statute of limitations has not expired, that it is tolled, or that an exception to the statute of limita
In addition to the expiration of the statute of limitations as to the accounting malpractice causes of action against Marcum, the Supreme Court properly concluded that all of the plaintiffs claims, against both defendants, were barred by the doctrine of in pari delicto, which “mandates that the courts will not intercede to resolve a dispute between two wrongdoers” (Kirschner v KPMG LLP, 15 NY3d 446 , 464 [2010]; see Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 123 AD3d 901 , 902 [2014]). Contrary to the plaintiffs contention, the allegations of the complaint do not implicate the “adverse interest” exception to the doctrine, because the allegations do not support a finding that the corporate insiders who allegedly committed the wrongdoing totally abandoned the corporation’s interests and acted entirely on their own (see Kirschner v KPMG LLP, 15 NY3d at 467-468 ; Chaikovska v Ernst & Young, LLP, 78 AD3d 1661 , 1663-1664 [2010]; cf. Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d at 198 ).
In light of our determination, we need not address the plaintiff’s remaining contentions.
Mastro, J.P., Balkin, Sgroi and Maltese, JJ., concur.
Cases cited
- Lindsay v. Pasternack Tilker Ziegler Walsh Stanton & Romano LLP 129 AD3d 790 at 792 p. 938
- Alizio v. Ruskin Moscou Faltischek, P.C. 126 AD3d 733 at 734-735 p. 938
- Lake v. New York Hospital Medical Center 119 AD3d 843 at 844 p. 938
- Lessoff v. 26 Court Street Associates, LLC 58 AD3d 610 at 611 p. 938
- Baptiste v. Harding-Marin 88 AD3d 752 at 753 p. 939
- Symbol Technologies, Inc. v. Deloitte & Touche, LLP 69 AD3d 191 at 195 p. 939
- Williamson v. PricewaterhouseCoopers LLP 9 NY3d 1 at 8 p. 939
- Rodeo Family Enterprises, LLC v. Matte 99 AD3d 781 at 783 p. 939
- Shumsky v. Eisenstein 96 NY2d 164 at 171 p. 939
- Kirschner v. KPMG LLP 15 NY3d 446 at 464 p. 939
- Schwartz v. Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP 123 AD3d 901 at 902 p. 939
- Chaikovska v. Ernst & Young, LLP 78 AD3d 1661 at 1663-1664 p. 939
- Strunk v. New York State Board of Elections 126 AD3d 781 at 782 p. 940