Gagliardi v. Prager Metis CPAs LLC

Background

Rosita Gagliardi sued Prager Metis CPAs LLC and Phillip D’Angelo under New York law for professional negligence and unjust enrichment. She alleged that the defendants failed to file her and her husband’s 2015 and 2016 United States joint tax returns and filed their 2017 joint return late. The court’s earlier rulings allowed the accountant-malpractice claim to proceed and dismissed the unjust-enrichment claim with prejudice.

The pending dispute concerned five interrogatories—written discovery questions—asking Gagliardi to identify documents supporting the defendants’ alleged duties, people and entities with whom she or her husband discussed the allegations and counterclaims, accounting and related-service providers, people or entities who reviewed Prager’s work, and documents provided to potential or retained experts.

Parties’ Positions

Gagliardi asserted the spousal communication privilege, which can protect confidential communications between spouses made during the marriage. She argued that she learned the requested information from her husband through confidential communications involving their joint tax returns.

The defendants argued that the communications fell within New York’s exception for ordinary business matters. They also argued that Gagliardi had waived the privilege by putting the basis for her claims at issue. The opinion states that Gagliardi’s husband had assigned his claims against the defendants to her and would have been required to answer the interrogatories had he remained a plaintiff.

Court’s Analysis

Judge Tarnofsky questioned whether communications about joint tax returns were induced by the marital relationship in the sense required for the privilege. The judge stated that such communications were not ordinarily communications arising from marital affection, confidence, or loyalty.

The judge nevertheless assumed, for purposes of the ruling, that Gagliardi had made an initial showing that the communications could be privileged. The court held that the communications were still subject to disclosure because the defendants established that they were ordinary conversations about business matters. The court reasoned that filing and paying taxes is a business matter, particularly after the husband assigned his claims to Gagliardi.

The court also held that the privilege had been waived by placing the communications at issue. According to the court, the husband would have had to respond to the interrogatories if he remained a plaintiff, and it would be unfair for Gagliardi to pursue the claims while preventing discovery by invoking the spousal privilege.

Disposition

Judge Tarnofsky granted the defendants’ letter-motion to compel. Gagliardi was ordered to provide substantive responses to the five interrogatories by November 7, 2025. The Clerk of Court was requested to terminate the motion, identified as ECF 102.