Continental Cas. Co. v PricewaterhouseCoopers, LLP

Continental Cas. Co. v PricewaterhouseCoopers, LLP 2008 NY Slip Op 10202 [57 AD3d 411] December 30, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Continental Casualty Company et al., Appellants,
v
PricewaterhouseCoopers, LLP, Respondent. Eagle Partners, L.P., et al., Appellants, v PricewaterhouseCoopers, LLP, Respondent. Jeremy M. Jones et al., Appellants, v PricewaterhouseCoopers, LLP, Respondent.

—[*1] Pachulski Stang Ziehl & Jones LLP, New York (Dean A. Ziehl of counsel), for appellants.

Orrick, Herrington & Sutcliffe LLP, New York (J. Peter Coll, Jr. of counsel), for respondent.

Judgments, Supreme Court, New York County (Karla Moskowitz, J.), entered January 7, 2008, dismissing the actions pursuant to an order, same court and Justice, entered November 9, 2007, which granted defendant's motion for summary judgment, unanimously affirmed, with costs. Appeal from above order unanimously dismissed, without costs, as subsumed in the consolidated appeal from the judgments.

Even if plaintiff limited partners' claims of fraudulent inducement are sufficient, as a legal matter, to support a direct claim against the partnership's auditor (see e.g. Kaufmann v Delafield, 224 App Div 29 [1928]), they failed to submit evidence to raise an issue of fact in opposition to defendant's prima facie showing that the damages claimed all emanated from losses that took place after the initial investment, did not affect plaintiffs differently from other [*2]limited partners, and were therefore derivative (see generally Abrams v Donati, 66 NY2d 951 [1985]; see also Gentile v Rossette, 906 A2d 91, 99 [Del 2006] [claims of corporate overpayment]).

In view of the foregoing, it is unnecessary to address appellants' other contentions. Concur—Lippman, P.J., Gonzalez, Nardelli, Buckley and Acosta, JJ.