Lally v Winkler & Co. (MB)

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Lally v Winkler & Co. (MB) 2010 NY Slip Op 33757(U) December 23, 2010 Supreme Court, Nassau County Docket Number: 4478/11 Judge: F. Dana Winslow Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ..................... ........ [* 1] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: BON. F. DANA WINSLOW, Justice TRI/IAS, PART REGAN LALLY, NASSAU COUNTY Plaintiff, -against- MOTION SEQ. NO. : 001 MOTION DATE: 9/9/11 WINKLER & COMPANY (MB), and RONALD M. WINKLER, CPA, INDEX NO. : 4478/11 Defendants. The following papers having been read on the motion (numbered 1-3): Notice of Motion......... ............. .................................................... ............ Affidavit in Op po s Memo ran dum itio D.......................... ................................. of Law ............................................................ ...... ........... Motion pursuant to CPLR 93212(a)(5) and (a)(7) to dismiss the complaint is determined as follows. In this action, plaintiff seeks to recover damages arising from defendants ' alleged accounting services rendered between 1996- 2008 including tax advice , tax preparation and fiing of joint personal tax returns during the period ofplaintiffs marriage to Richard Aebly, the brother- in- law of defendant Ronald M. Winkler. The complaint asserts seven separate causes of action each under the heading of professional malpractice vis-a-vis professional malpractice. They include: breach of fiduciar duty/confidentiality; collusion in hostile litigation against plaintiff; providing false counsel; information and direction to plaintiff detriment; destruction of client records; s In or about 2008 divorce proceedings were initiated between plaintiff and her husband Richard Aebly. [* 2] refusal to release client records; failure to war client of pending litigation; and fraud -- preparation of incorrect/false tax return for the year 2007. Defendants seek dismissal of the complaint pursuant to CPLR 3211(a)(5) and (a)(7) predicated on the grounds that the action is time bared inasmuch as the last joint tax return fied on behalf of plaintiff and Richard Aebly was for tax year 2006 , more than thee years before defendant Ronald M. Winkler received a copy of the complaint in this action. Defendant further maintains that defendants received no compensation for his services; no contract was ever executed by the paries defming their relationship and defendants never provided any financial or other tye of professional advice to plaintiff. As such , defendants contend the complaint is unsustainable. ANAL YSIS A claim of professional negligence requires proof that there was a deparure from accepted standards of practice and that the deparure was a proximate cause of the injury. 73 AD3d 862, 863 (2 Dept 2010). In the context of a malpractice action against an accountant , the claim accrues upon the client' s receipt of the accountant' s work product since this is the point that a client reasonably relies on the accountant' s skil and 63 AD3d 1045 , 1047 (2 Dept 2009) (citation Touche and internal quotation marks omitted). Absent fraud, a claim of negligently given incorrect accounting information or advice 110nnally accrues upon receipt of the Schultz 36 AD3d 249 , 252 (1 st Dept 2006). Kung advice. Zheng, Weiss Deloite , LLP, Mitschele negligently prepared tax return. Although defendants aver that the last tax return fied by defendants on behalf of plaintiff was for the year 2006, the filing of which occurred in April, 2007, plaintiff has submitted a copy of a 2007 federal joint income tax return prepared and filed on her behalf for the 2007 tax year , and a letter to her from defendants dated April 4 , 2008 advising her ofa balance due of$I13, 948. The claim for accounting malpractice is governed by a three year statute of limitations. CPLR 214(6). The statute of limitations in a malpractice case may be tolled 'where the parties engaged in a continuous professional relationship " but only ' 'where the continuous representation was in connection with the paricular transaction which, is the Schultz 253. A recurring use of a professional' s services does not constitute continuous subject of the action. Mitschele , supra, [* 3] representation if the later services are not related to the original service which gave rise to Silver 46 AD3d 1053 , 1055 (3 Dept 2007). fied on March 24 , 20 II, Since the record reflects that a summons with notice was , 2011 , the and served on defendant Ronald M. Winkler , CPA individually on April 2 the , for the reasons preparation and filing of the 2007 joint tax return is timely asserted and which follow, the only sustainable claim asserted in the complaint. fiduciar relationship The existence of a negligence claim does not create a fiduciar relationship between between a client and her accountant. Generally, there is no st Dept 2005). the action. Giarratano vis-a-vis action was timely commenced. A claim of professional malpractice (1 23 AD3d 163, 166 Anderson, Friedman and accountant and his client. A conventional business relationship, without more , does not become a fiduciary Anchin, LLP, 300 as to their st AD2d 70, 71 (1 Dept 2002). As a general rule, accountats are not fiduciaries Anderson supra), except where the accountant is directly involved in 36 AD3d 176 , 194 (2 Dept managing the client' there is no allegation that defendants played such a role , defendants are not Anchin, Block DG Liquidation relationship by mere allegation. clients (Friedman s investments. Caprer Nussbaum, 2006). Since subject to breach of fiduciary claims as alleged in the first cause of action. The bare allegations asserted in the second, third, fort, fift and sixth causes of The action fail to state cognizable causes of action upon which relief might be granted. purorted causes of action are devoid of factual support. Bare conclusory allegations of collusion with unspecified third paries , revelation of confidential information to said destrction of unspecified paries; provision of false infonllation/professional advice; war client of pending client' s records; failure to return client records and failure to litigation are not entitled to the presumption of truth in the absence of any factual data to support such a finding. The purported claims must, therefore, be dismissed. The essential elements of a cause of action for fraud are a representation of a Smith material existing fact , falsity, scienter and 88 NY2d 413, 421 (1996). A plaintiff seeking to recover for fraud , deception and injury. Lama Holding Co. Barney, misrepresentation is required to set forth specific and detailed factual allegations not subject to breach of fiduciar claims as alleged in the first cause of action that the Eurycleia Partners, LP defendant paricipated in or had actual knowledge of any fraud. Seward Kissel, LLP 12 NY3d 553, 559 (2009). A fraud claim is not actionable without Guberman evidence that the misrepresentations were made with intent to deceive. [* 4] Rudder 85 AD3d 683 684 (1 st Dept 2011). A claim rooted in fraud must be pled with 3016(b). CPLR 93016(b) provides that an action for fraud must be pled "with particularity, including specific dates and items, if necessar and insofar as practicable. " Conclusory allegations of fraud wil not be Magarell, 50 13 AD3d 332 (2 12 NY3d 527 (2009). A mere recitation of AD3d 117 (2 National Union Fire Ins. Robert Christopher Associates 257 AD2d 1 9 (pt Dept 1999). the requisite paricularity required under CPLR sufficient. Dumas Dept 2004); and Fiorito, Dept 2008), Sargiss affd as modifed, the elements of fraud is insufficient to state a cause of action. Co. of Pittsburgh, PA. The complaint must allege the basic facts to establish elements of the cause of action and Mandarin Trading Ltd. the circumstances constituting the wrong must be stated in detail. Wildenstein 16 NY3d 173 , 178 (2011). Plaintiff has failed to ariculate a cause of action for fraud with the requisite particularity. The complaint is devoid of any factual support for any of the elements of fraud. Accordingly, even affording the complaint a liberal construction, and according 50 NY 2d 485 484 (1980)), defendants ' motion to dismiss the complaint is granted as to the (Marone the plaintiff the benefit of every possible favorable inference Marone, first , second, fourth , fifth , sixth and seventh causes of action of the complaint and denied vis-a-vis as to the third cause of action for malpractice preparation ofplaintiffs 2007 join tax retur which continues. This constitutes the Order of the Court. .1()1() lS. ENTERED JAN 1 8 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE

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