Berg v Eisner LLP

Berg v Eisner LLP 2012 NY Slip Op 02602 Decided on April 10, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 10, 2012
Andrias, J.P., Friedman, Acosta, Richter, JJ.
7317 651431/10

[*1]Carl Berg, Plaintiff-Appellant,

v

Eisner LLP, et al., Defendants-Respondents.




Berger & Webb, LLP, New York (Steven A. Berger of
counsel), for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York
(Thomas W. Hyland of counsel), for respondents.

Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered February 28, 2011, which granted defendants' motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff claims that defendants committed accounting malpractice by failing to inform him of a possible tax election that would have allowed him to write off a large portion of his securities trading losses. Given the parties' accountant-client relationship, the scope of defendants' duty to plaintiff is no narrower than the terms of the parties' agreement, and may be broader, based on professional accounting standards (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 8 [2008] [the attorney-client relationship is both contractual and inherently fiduciary]). The allegations that defendants provided plaintiff with tax planning advice concerning his trading income establish that the parties' agreement encompassed the election issue. These allegations also present the question whether defendants' failure to raise the election issue with plaintiff was a departure from professional accounting standards, which is a question that requires expert evidence for its resolution (see e.g. Menard M. Gertler, M.D., P.C. v Sol Masch & Co., 40 AD3d 282 [2007]). [*2]

Contrary to defendants' contention, plaintiff adequately pleaded proximate cause (see Fielding v Kupferman, 65 AD3d 437, 442 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 10, 2012

CLERK