Bitter v Renzo

Bitter v Renzo 2012 NY Slip Op 08453 Decided on December 11, 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 December 11, 2012
Andrias, J.P., Friedman, DeGrasse, Manzanet-Daniels, JJ.
8770 652003/11

[*1]Adriana Bitter, et al., Plaintiffs-Appellants,

v

Louis N. Renzo, et al., Defendants-Respondents, Ronkonkoma Operations LLC, et al., Defendants.




Napoli Bern Ripka Shkolnik, LLP, New York (Adam J. Gana of
counsel), for appellant.
Ganfer & Shore, LLP, New York (Mark A. Berman of
counsel), for Louis N. Renzo, respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains
(Gregory W. Gilliam of counsel), for Charles Raich, respondent.

Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered April 16, 2012, which, to the extent appealed from as limited by the briefs, granted defendant Charles Raich's motion to dismiss the breach of fiduciary duty claim, and granted defendant Louis N. Renzo's motion to dismiss the aiding and abetting breach of fiduciary duty claim, unanimously affirmed, without costs.

The duty owed by an accountant to a client is generally not fiduciary in nature (Able Energy, Inc. v Marcum & Kliegman LLP, 69 AD3d 443, 444 [1st Dept 2010]; DG Liquidation v Anchin, Block & Anchin, 300 AD2d 70, 70-71 [1st Dept 2002]). Nor does a conventional business relationship, without more, create a fiduciary relationship (Friedman v Anderson, 23 AD3d 163, 166 [1st Dept 2005]).

Here, plaintiffs alleged only that Raich agreed to provide accounting and consulting services for Scalamandre, the company in which plaintiffs held a financial interest, and its board of directors. This does not suffice to allege that Raich owed plaintiffs a fiduciary duty. In light of the insufficient allegations of any fiduciary duty owed by Raich, the trial court also correctly dismissed the claim of aiding and abetting a breach of fiduciary duty (see Kaufman v Cohen, 307 AD2d 113, 125 [1st Dept 2003]).

To the extent that plaintiffs argue on appeal that defendant Raich owed plaintiffs a fiduciary duty, not as an accountant or advisor, but as a "business broker," our review of the record reveals that this theory of liability was not articulated in the complaint or in plaintiffs' papers opposing dismissal. Accordingly, we decline to consider this claim (see e.g.
Sonnenschein v Douglas Elliman-Gibbons & Ives, 96 NY2d 369, 376-377 [2001]; Recovery Consultants v Shih-Hsieh, 141 AD2d 272, 276 [1st Dept 1988]).

THIS CONSTITUTES THE DECISION AND ORDER [*2]
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 11, 2012

CLERK