Sometimes short and concisely written opinions contain much information. Today, we cconclude with Jefferson Apts., Inc. v Mauceri 2016 NY Slip Op 26230 Decided on July 25, 2016 Supreme Court, Queens County Ritholtz, J. are simple. An accounting firm is hired to oversee the basic accounting needs of a corporation. Lots of money is missing. It takes a while to figure out that there is a problem. What happens to the professional negligence suit?
Negligent Misrepresentation and aiding and abetting a tort:
“The branch of the motion which is to dismiss plaintiff’s claim against Mauceri for aiding and abetting the commission of a tort for failure to plead with particularity, is denied. To assert a claim for aiding and abetting, plaintiff must allege (1) the existence of an underlying tort; (2) defendant’s actual knowledge of the underlying tort; and (3) defendant’s provision of substantial assistance in the commission of the underlying tort. Thus, to allege aiding and abetting fraud, for example, plaintiff must allege that defendant had actual knowledge of the fraud and provided substantial assistance in its commission (In re Bayou Hedge Funds Inv. Litig., 472 F. Supp. 2d 528, 532 [S.D.NY 2007]; Steed Finance LDC v Laser Advisers, Inc., 258 F. Supp. 2d 272, 282 [S.D.N.Y.2003]). Here, plaintiff alleges multiple torts against co-defendants Caputo and Tribor sounding in conversion, fraud, fraudulent concealment, breach of fiduciary duty and negligence. As to particularization of the claim, plaintiff alleges that Mauceri knew of the co-defendants’ unauthorized transfers of plaintiff’s funds and failed to report the same. The specifics as to the amounts, dates and recipients of the unauthorized transfers are also alleged with particularity throughout the complaint.
The elements of a claim for negligent misrepresentation are: “(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information” (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148 ; see, Hudson Riv. Club v Consolidated Edison Co. of NY, 275 AD2d 218, 220 ). The branch of the motion which is to dismiss the eleventh cause of action (negligent misrepresentation), is granted as the same is duplicative of the professional malpractice claim as they arose from the same facts and do not allege distinct damages (see, Blanco v Polanco, 116 AD3d 892 ; Bruno v Trus Joist a Weyerhaeuser Bus., 87 AD3d 670 ; Leon Petroleum, LLC v Carl S. Levine & Associates, P.C., 80 AD3d 573 ; Stuart v Kushner, 68 AD3d 974 ; Town of Wallkill v Rosenstein, 40 AD3d 972 ; cf. Rosenbach v Diversified Grp., Inc., 2006 WL 1310656, 2006 NY Slip Op. 50856(U) [Sup. Ct. New York County 2006]).”