Fraud on the court is not really “fraud” as it is generally used. Pritsker v Zamansky LLC  2021 NY Slip Op 05678 Decided on October 19, 2021
Appellate Division, First Department discusses a selective quote and whether it was fraud on the court.

“As the basis for seeking vacatur of the November 2018 order, plaintiff postulates that defendants engaged in a fraud on the court. Plaintiff asserts that defendants submitted a deceptively elided quotation from the underlying arbitral decision, which was intended to suggest that plaintiff himself was responsible for the unsuccessful investment at issue, rather than the investment firm he commenced the arbitration against. The purpose of this, he contends, was to immunize defendants from liability, since plaintiff could not prevail against them for legal malpractice if there was no meritorious claim to pursue in the first place.

Plaintiff’s fraud theory is not viable. Notably, plaintiff admits that, in addition to the selectively edited quotation, defendants submitted the entire arbitration decision as an exhibit. Nor does plaintiff claim that defendants’ quotation was literally misquoted or otherwise inaccurate. These facts cut sharply against plaintiff’s theory. Defendants accurately noted that they were selectively quoting from a larger document, and then attached the entire source document for the court’s reference and verification. Defendants gave their opinion of the import of the quoted language. Again, however, defendants also submitted the entire document to the court, so that it might shape its own view of the arbitral decision. We see here only advocacy by defendants, not fraud. Since plaintiff has not met his burden of showing fraud, he has not shown any entitlement to relief under CPLR 5015(a)(3) either (see Molina v Chladek, 140 AD3d 523, 524 [1st Dept 2016]; Miller v Lanzisera, 273 AD2d 866, 868 [4th Dept 2000]).”

Plaintiff enunciated a good legal malpractice claim, but failed to state a good damages claim for loss of sales value in real estate,  In 83 Willow, LLC v Apollo  2020 NY Slip Op 05843 [187 AD3d 563]  October 20, 2020
Appellate Division, First Department the court wrote:

“For purposes of the motion, defendant does not dispute that his alleged failure to advise plaintiff of the consequences of a contingency clause in its contract to sell property was negligent, but contends that plaintiff cannot demonstrate that his negligence was the “but for” causation of ascertainable damages. On this record, triable issues of fact exist as to whether, but for defendant’s failure to inform plaintiff’s principal that it could be locked into the sale agreement in perpetuity if it did not obtain municipal approval for redevelopment, it would not have entered into the contract as written and would have avoided litigation with the buyer who sued for specific performance (see Leggiadro, Ltd. v Winston & Strawn, LLP, 151 AD3d 413 [1st Dept 2017]; Escape Airports [USA], Inc. v Kent, Beatty & Gordon, LLP, 79 AD3d 437, 438-439 [1st Dept 2010]). Plaintiff’s alleged damages, as they relate to legal expenses defending the specific performance action, may be found to be proximately related to defendant’s negligent advice related to the issue of the contingency clause (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 443).

However, plaintiff’s claims to recover damages based on the difference between the price it agreed to in settlement and either the original contract price or the fair market value of the property as of the date of closing were properly dismissed. The purpose of compensatory damages in attorney malpractice cases is to make the injured party whole. Plaintiff made a substantial profit on the deal, and its principal acknowledged that the settlement price was not much less than the contract price, taking into account a brokerage commission issue and that it did not have to continue incurring costs to obtain zoning approvals. Furthermore, plaintiff cannot recover legal fees it incurred to defend the slander of title matter and to prosecute the case to obtain the escrow funds since those suits are not causally related to defendant’s alleged negligence (see Pyne v Block & Assoc., 305 AD2d 213 [1st Dept 2003]).”

Accountants (in general) may rely upon information given to them by the client and are not under a general requirement to investigate.  This state of affairs doomed Deane v Brodman 2021 NY Slip Op 01842 [192 AD3d 577] March 25, 2021 Appellate Division, First Department.

“Defendants are entitled to summary judgment dismissing the professional negligence claims asserted against them as plaintiff has not offered evidence of a departure from a recognized and accepted professional standard for accountants. “A party alleging a claim of accountant malpractice must show that there was a departure from the accepted standards of practice” (KBL, LLP v Community Counseling & Mediation Servs., 123 AD3d 488, 488 [1st Dept 2014]). Plaintiff does not identify any applicable professional standard which would have required defendants to inquire whether the transactions at issue were approved in accordance with the procedures contained in the operating agreement. To the contrary, the standards proffered by plaintiff’s expert permit an accountant engaged for tax preparation services to rely on information furnished by the taxpayer unless it appears to be incorrect, incomplete or inconsistent. There is no allegation here that the information provided to defendants was incorrect, incomplete or inconsistent.”

Gill v. Doubherty, 2020 NY Slip Op 06758 [188 AD3d 1008] November 18, 2020 Appellate Division, Second Department is a reversal of Supreme Court’s denial of a CPLR 3211 motion.

“In an action, inter alia, to recover damages for violation of Judiciary Law § 487 and defamation, the defendants Iona College and Kathleen McElroy appeal, and the defendants Anthony D. Dougherty and Tarter Krinsky & Drogin, LLP, separately appeal, from an order of the Supreme Court, Westchester County (Gerald E. Loehr, J.), entered May 13, 2019. The order denied the separate motions of the defendants Iona College and Kathleen McElroy and the defendants Anthony D. Dougherty and Tarter Krinsky & Drogin, LLP, pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against each of them.

Ordered that the order is reversed, on the law, with one bill of costs, and the motion of the defendants Iona College and Kathleen McElroy and the defendants Anthony D. Dougherty and Tarter Krinsky & Drogin, LLP, pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against each of them is granted.

The plaintiff commenced this action, inter alia, to recover damages for violation of Judiciary Law § 487 and defamation against Anthony D. Dougherty, Tarter Krinsky & Drogin, LLP, Iona College (hereinafter Iona), and Kathleen McElroy. The plaintiff worked for the City of New Rochelle and previously worked as General Counsel for Iona. Dougherty worked for the law firm Tarter Krinsky & Drogin, LLP (hereinafter together the TKD defendants). McElroy worked as General Counsel for Iona (hereinafter together the Iona defendants).”

“We disagree with the Supreme Court’s determination to deny the Iona defendants’ motion pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against them. The statements made with respect to the plaintiff in the prior hybrid action/proceeding were pertinent to that action/proceeding, and were therefore protected by absolute privilege (see Ifantides v Wisniewski, 181 AD3d 575, 576 [2020]; Weinstock v Sanders, 144 AD3d 1019, 1021 [2016]; Brady v Gaudelli, 137 AD3d 951, 952 [2016]; Rabiea v Stein, 69 AD3d 700, 701 [2010]). Further, the context of the complained-of statement in a campus publication was such that a reasonable reader would have concluded that he or she was reading an opinion, and not facts, about the plaintiff (see Rosner v Amazon.com, 132 AD3d 835, 837 [2015]; Silverman v Daily News, L.P., 129 AD3d 1054, 1055 [2015]; Hollander v Cayton, 145 AD2d 605, 605-606 [1988]). Likewise, the cause of action alleging prima facie tort failed because the plaintiff did not sufficiently plead “malicious intent or disinterested malevolence as the sole motive for the challenged conduct” of the Iona defendants, and failed to sufficiently plead special damages (Ahmed Elkoulily, M.D., P.C. v New York State Catholic Healthplan, Inc., 153 AD3d 768, 772 [2017]; see Nachbar v Cornwall Yacht Club, 160 AD3d 972, 973-974 [2018]).

Additionally, we disagree with the Supreme Court’s determination to deny the TKD defendants’ motion pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against them. The plaintiff failed to allege sufficient facts to establish that Dougherty intended to deceive through his actions in the prior hybrid action/proceeding (see Klein v Rieff, 135 AD3d 910, 912 [2016]; Seldon v Lewis Brisbois Bisgaard & Smith LLP, 116 AD3d 490, 491 [2014]; see also Doscher v Meyer, 177 AD3d 697, 699 [2019]). Notably, “ '[a]ssertion of unfounded allegations in a pleading, even if made for improper purposes, does not provide a basis for liability under [Judiciary Law § 487]’ ” (Ticketmaster Corp. v Lidsky, 245 AD2d 142, 143 [1997], quoting Thomas v Chamberlain, D’Amanda, Oppenheimer & Greenfield, 115 AD2d 999, 999-1000 [1985]). Moreover, the cause of action alleging a violation of Judiciary Law § 487 failed to sufficiently allege that the plaintiff suffered an injury proximately caused by any claimed deceit or collusion on the part of Dougherty, and no such injury can reasonably be inferred from the amended complaint (see Gumarova v Law Offs. of Paul A. Boronow, P.C., 129 AD3d 911, 911 [2015]). The cause of action alleging defamation failed because the challenged statements were absolutely privileged as a matter of law and cannot be the basis for a defamation action (see Ifantides v Wisniewski, 181 AD3d at 576; Weinstock v Sanders, 144 AD3d at 1021; Brady v Gaudelli, 137 AD3d at 952; El Jamal v Weil, 116 AD3d 732, 734 [2014]; Rabiea v Stein, 69 AD3d at 701). Tarter Krinsky & Drogin, LLP, cannot be held vicariously liable for Dougherty’s primary liability absent a cognizable theory of liability against Dougherty (see Karaduman v Newsday, Inc., 51 NY2d 531, 546 [1980]; Pereira v St. Joseph’s Cemetery, 54 AD3d 835, 837 [2008]; Rojas v Feliz, 24 AD3d 652 [2005]).”

Pinkesz Mut. Holdings, LLC v Pinkesz  2021 NY Slip Op 05359  Decided on October 6, 2021 Appellate Division, Second Department makes an interesting distinction between “civil fraud upon the court” and Judiciary Law §487.  There is a question raised (and not decided) whether certain conduct during the course of litigation can give rise to a private cause of action outside of Judiciary Law § 487,

“The Supreme Court also should have granted dismissal of Edward’s and Anthony’s third-party causes of action alleging violations of Judiciary Law § 487, which are asserted against Rubenstein, Horowitz & Rubenstein, Feder, RESF, Goldberg, and Herrick Feinstein. As a threshold matter, neither Rubenstein nor Horowitz & Rubenstein are alleged to have acted as attorneys in this action, and Judiciary Law § 487 “applies to an attorney acting in his or her capacity as an attorney, not to a party who is represented by counsel and who, incidentally, is an attorney” (Oakes v Muka, 56 AD3d 1057, 1058). The allegations of wrongdoing against Feder, RESF, Goldberg, and Herrick Feinstein are equally deficient inasmuch as they fail to allege specific facts from which it could be reasonably inferred that Feder, RESF, Goldberg, and Herrick Feinstein acted with the requisite degree of scienter (see Sammy v Haupel, 170 AD3d 1224, 1225), and/or otherwise fail to allege specific facts from which it could be inferred that the alleged deceit was the proximate cause of any injury to Edward or Anthony (see Parks v Leahey & Johnson, 81 NY2d 161, 164-165; Gumarova v Law Offs. of Paul A. Boronow, P.C., 129 AD3d 911, 912).

Further, the Supreme Court should have granted dismissal of Edward’s cross claim, counterclaim, and third-party cause of action alleging civil fraud upon the court insofar as asserted against each of the appellants. Even assuming, without deciding, that judicially sanctionable conduct during the course of litigation can give rise to a private cause of action for damages outside of Judiciary Law § 487 (cf. Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 178; see generally CDR Créances S.A.S. v Cohen, 23 NY3d 307, 315; ), no such cause of action has been pleaded in this case (see DeMartino v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 189 AD3d 774, 775).”

Although the Appellate Division did not really link the case facts to the blackletter law, Bianco v Law Offs. of Yuri Prakhin  2020 NY Slip Op 07849 [189 AD3d 1326] December 23, 2020 Appellate Division, Second Departmentis worthwhile reading for the discussion of burdens in a CPLR 3211 setting and the basic definition of a Judiciary Law § 487 claim.

“On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see CPLR 3026). The facts as alleged in the complaint are accepted as true, the plaintiff is afforded the benefit of every possible favorable inference, and the court determines only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Under CPLR 3211 (a) (1), a dismissal is warranted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d at 88). In order for evidence to qualify as documentary, it must be unambiguous, authentic, and undeniable (see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [2010]; Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]). “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Fontanetta v John Doe 1, 73 AD3d at 84-85 [internal quotation marks omitted]; see First Choice Plumbing Corp. v Miller Law Offs., PLLC, 164 AD3d 756, 758 [2018]). Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211 (a) (1) (see Fox Paine & Co., LLC v Houston Cas. Co., 153 AD3d 673, 678 [2017]; Granada Condominium III Assn. v Palomino, 78 AD3d at 997). Accordingly, the hearing transcripts, affirmation, and affidavit relied upon by the Kletzkin defendants and the Schneider defendants in support of their respective motions do not constitute documentary evidence for the purposes of CPLR 3211 (a) (1). Additionally, the trial counsel agreement between the Schneider defendants and the Kletzkin defendants, which does constitute documentary evidence, did not utterly refute the factual allegations of the complaint and did not conclusively establish a defense to the claims as a matter of law.

On a motion made pursuant to CPLR 3211 (a) (7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party (see Sokol v Leader, 74 AD3d 1180, 1181 [2010]). “Unless the motion is converted into one for summary judgment pursuant to CPLR 3211 (c), ‘affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint,’ and such affidavits ‘are not to be examined for the purpose of determining whether there is evidentiary support for the pleading’ ” (Sokol v Leader, 74 AD3d at 1181, quoting Rovello v Orofino Realty Co., 40 NY2d 633, 635, 636 [1976]; see Nonnon v City of New York, 9 NY3d 825, 827 [2007]). Affidavits submitted by a defendant “will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no . . . cause of action” (Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008] [emphasis and internal quotation marks omitted]; see Sokol v Leader, 74 AD3d at 1182). “[U]nless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Carlson v American Intl. Group, Inc., 30 NY3d 288, 298 [2017]; AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]).

Here, the plaintiff adequately pleaded the cause of action alleging legal malpractice against the Kletzkin defendants and the Schneider defendants. Contrary to the contentions of those defendants, neither conclusively established that an application for leave to serve a late notice of [*3]claim or to deem the late notice of claim timely served upon the NYCTA nunc pro tunc would have been futile (see generally Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 465 [2016]; Davis v Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, 284 AD2d 104, 105 [2001]).

Contrary to the Kletzkin defendants’ contention, the complaint adequately states a cause of action to recover damages for violation of Judiciary Law § 487. Contrary to the Schneider defendants’ contention, the cause of action alleging violation of Judiciary Law § 487 is not duplicative of the cause of action alleging legal malpractice. “A violation of Judiciary Law § 487 requires an intent to deceive (see Judiciary Law § 487), whereas a legal malpractice claim is based on negligent conduct” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [2009]; see Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 [2018], affd 35 NY3d 173 [2020]).”

In  Pritsker v Zamansky LLC 2021 NY Slip Op 02767 [194 AD3d 432]
May 4, 2021 Appellate Division, First DepartmentPlaintiff tried to bring this claim in 201`7, only to face dismissal.  When the Claim was brought again, albeit it a different form, it was again dismissed.

“This action is barred by the doctrine of res judicata (claim preclusion) (see generally Matter of Hunter, 4 NY3d 260, 269 [2005]). The dismissal of plaintiff’s 2017 action was on the merits, and not, as plaintiff argues, based on pleading defects (Pritsker v Zamansky LLC, 2018 NY Slip Op 33980[U] [Sup Ct, NY County 2018]; see Feigen v Advance Capital Mgt. Corp., 146 AD2d 556, 558 [1st Dept 1989]). Thus, plaintiff is barred from asserting his previously-pleaded causes of action for legal malpractice, breach of fiduciary duty, and negligence. Plaintiff is also barred from asserting his “new” fraudulent inducement and breach of fiduciary duty causes of action, because at bottom, they arise out of the same transactions as his previously pleaded causes of action. Claim preclusion bars plaintiff’s claims against Jacob Zamansky as well as Zamansky LLC because both were named as defendants in the 2017 action and Jacob Zamansky is in privity with Zamansky LLC (see Rojas v Romanoff, 186 AD3d 103, 108, 112 [1st Dept 2020]). Based on the foregoing, we do not reach the other bases defendants articulate for dismissal.”

Plaintiff tried to use an expert’s report which summarized the estate’s account on a summary judgment opposition in Leeder v Antonucci
2021 NY Slip Op 03978 [195 AD3d 1592] June 17, 2021 Appellate Division, Fourth Department.  It was submitted  after oral argument of the motion.

“Addressing appeal No. 1, we conclude that the court properly granted the cross motion. “[A] necessary element of a cause of action for legal malpractice is that the attorney’s negligence caused a loss that resulted in actual and ascertainable damages” (New Kayak Pool Corp. v Kavinoky Cook LLP, 125 AD3d 1346, 1348 [4th Dept 2015] [internal quotation marks omitted]; see Leeder, 174 AD3d at 1469). Furthermore, “[c]onclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action” (New Kayak Pool Corp., 125 AD3d at 1348 [internal quotation marks omitted]). Here, defendant met his initial burden on the cross motion by establishing that plaintiff’s allegations of damages with respect to the estate cause of action are speculative (see id.Lincoln Trust v Spaziano, 118 AD3d 1399, 1401-1402 [4th Dept 2014]). In opposition, plaintiff failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). With respect to plaintiff’s opposition, we perceive no error in the court’s rejection of the estate account summary that plaintiff submitted, [*2]which was purportedly prepared by a retained expert. Plaintiff did not submit the summary until nearly a month after the original oral argument on defendant’s cross motion (see Kopeloff v Arctic Cat, Inc., 84 AD3d 890, 890-891 [2d Dept 2011]). Contrary to plaintiff’s contention, the submission was untimely. The fact that the deadline in the court’s scheduling order for disclosure of expert witnesses had not yet passed did not relieve plaintiff of his burden to “lay bare his proof and show that a genuine question of fact exists” in opposition to the cross motion for summary judgment (Oot v Home Ins. Co. of Ind., 244 AD2d 62, 71 [4th Dept 1998]; see also CPLR 3212 [f]). In any event, the estate account summary is conclusory, speculative, and insufficient to raise a triable issue of fact (see generally Feldmeier v Feldmeier Equip., Inc., 164 AD3d 1093, 1099 [4th Dept 2018]).”

It’s not always true that plaintiff can rely upon the filing date of a consent to change attorney as the end of continuous representation.  In certain circumstances it can end much earlier.  Nevertheless, in Farina v Katsandonis, P.C.2021 NY Slip Op 05078 Decided on September 28, 2021
Appellate Division, First Department it was the date from which the statute of limitations was calculated.

“Supreme Court properly determined that plaintiff’s complaint, filed April 22, 2019, is barred by the three-year statute of limitations applicable to legal malpractice causes of action, and thus, amendment of the complaint would be futile (see generally McCoy v Feinman, 99 NY2d 295, 301 [2002]). The documentary evidence submitted by defendants established, as a matter of law, that their representation of plaintiff ended no later than April 7, 2016, the day the fully executed consent to change attorney form was filed. The filing of that form automatically ended defendants’ obligation to represent plaintiff notwithstanding defendants’ pending motion to be relieved, and for a charging lien (see CPLR 321[b][1]). Plaintiff failed to allege sufficient facts showing that there was a mutual understanding of the need for further representation of plaintiff by defendants after April 7, 2016 (cf. Unger v Horowitz, 8 AD3d 62, 62 [1st Dept 2004]; see generally McCoy, 99 NY2d at 306 [2002]). Borelli had clearly assumed representation of plaintiff by April 7, 2016, because on March 29, 2016, it opposed defendants’ motion for a charging lien on plaintiff’s behalf, and on March 31, 2016, it received plaintiff’s file from defendants (see MacArthur v Hall, McNicol, Hamilton & Clark, 217 AD2d 429, 429-430 [1st Dept 1995]).

Plaintiff’s argument that defendants should be estopped from claiming that their representation ended before April 21, 2016, when their motion to be relieved as counsel and for a charging lien was resolved by so-ordered stipulation, because they did not previously withdraw their request to be relieved as counsel or inform the court that that request was moot, is not persuasive. In light of the foregoing, we do not reach the parties’ remaining arguments regarding collateral estoppel and failure to state a cause of action.”

Darby Scott, Ltd. v Michael S. Libock & Co. LLC CPAs  2020 NY Slip Op 34343(U) December 31, 2020 Supreme Court, New York County
Docket Number: 653044/2013 Judge: Robert D. Kalish is a script for how a CPA malpractice case is put together and defended against.  It ultimately failed for statute of limitations,  lack of duty, and lack of damages.

“As a threshold matter, it is clear that all of plaintiff’s claims for damages are time-barred. The statute of limitations for nonmedical malpractice, including accounting malpractice, is three years, which applies “regardless of whether the underlying theory is based in contract or tort” (CPLR 214(6); see RGH Liquidating Trust v Deloitte & Touche LLP, 47 AD3d 516, 517 [1st Dept 2008]; Maya NY, LLC v Hagler, 106 AD3d 583, 586 [2013]). The “claim accrues when the malpractice is committed, not when the client discovers it” (Williamson ex rel. Lipper Convertibles, L.P. v PricewaterhouseCoopers LLP, 9 NY3d 1, 7–8 [2007]). More specifically, the cause of action “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 skill and advice” (id. at 8, quoting Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994]).

“This action was commenced on August 30, 2013, a date which would render time-barred claims for any act of malpractice committed prior to August 30, 2010. Plaintiff has not identified, and the record does not reflect, any work product produced by defendants after that cut-off date.”

“Plaintiff’s claims would fail even if they were asserted in a timely manner. “A party alleging a claim of accountant malpractice must show that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury,” (KBL, LLP v Cmty. Counseling & Mediation Servs., 123 AD3d 488, 488 [1st Dept 2014]; see D.D. Hamilton Textiles, Inc. v Estate of Mate, 269 AD2d 214, 215 [1st Dept 2000]). Furthermore, “[i]t is well settled that a plaintiff must establish, beyond the point of speculation and conjecture, a causal connection between its losses and the defendant’s actions” (Herbert H. Post & Co. v Sidney Bitterman, Inc., 219 AD2d 214, 224 [1st Dept 1996]). Although the scope of professional
accounting standards generally go beyond simple bookkeeping and auditing, the obligations may be expressly defined, and limited, by the terms of the parties’ engagement agreement (Friedman v Anderson, 23 AD3d 163, 165 [1st Dept 2005]; Italia Imports, Inc. v Weisberg & Lesk, 220 AD2d 226, 226–27 [1st Dept 1995]; Cumis Ins. Soc,, Inc. v Tooke, 293 AD2d 794, 797 [3d Dept 2002] [“express terms of the contractual agreements” governed accountant obligation to
“discover irregularities, errors and defalcations”]). ”

“The court finds that defendants have prima facie established that plaintiff has not suffered any damages and that any possible damages were caused by defendants. In response, plaintiff has failed to establish a triable issue of fact on this point. The only actual analysis of plaintiff’s inventory was performed by its employee Mayo, who is not an accountant. In her deposition she admitted she was not familiar with QuickBooks, whether it was or could be used to track inventory, or whether it employed a perpetual inventory system. She did not know whether the items in plaintiff’s inventory had unique identifiers such as barcodes prior to her employment. She also admitted that she did not attempt to secure missing vendor receipts. In the end, her
affidavit does not establish that any item of inventory was actually missing, but only that some items were “unaccounted for” based on the available records. ”