Malpractice Suit's Late Filing Spares Lawyer Liability for 'Dubious' Advice
No changes were made, and for 11 years Venturi did not report her alimony income.
The IRS notified her in 2008 that she owed about $12,800 in federal back taxes.
After challenging the IRS audit and petitioning the Family Part to amend the judgment, both unsuccessfully, Venturi filed a complaint against O'Donnell and Skoloff & Wolfe in January 2012.
The defendants claimed Venturi's cause of action came about at the time she confronted O'Donnell about the omission. Essex County Superior Court Judge Michael Hubner agreed and granted summary judgment, finding the filing beyond the six-year statute of limitations.
"I do not believe that her attorney's response somehow placed her in a place  of perceived safety where the discovery rule would carry her forward," Hubner said.
Venturi appealed, arguing that she did not suffer actual damages until 2008.
On Friday, Appellate Division Judges Anthony Parrillo and Jonathan Harris disagreed and affirmed, deeming Venturi "aware in 1997 that she had a significant problem" with tax liability.
The discovery rule applies only to tardy litigants who are unaware of the injury or the party responsible. Venturi falls into neither category, the court said.
The panel called O'Donnell's alleged advice a "wholly unsatisfactory" solution that "left Venturi in the exact state of affairs that she did not want to be in, that is, subject to the whim" of her ex-husband.
Her concerns "prompted her immediate communication with O'Donnell, who provided her with the dubious guidance of not worrying about it unless her ex-husband was actually to claim the alimony as a deductible expense," the court said.