Sure, it is easy to point out the shortcomings of professionals.  They waited too long, they argued the wrong point, they were not forceful enough, they issued an overly critical report which was unwarranted!  While most persons intuitively feel that identifying the shortcoming is the major part of the exercise, it is showing proximate cause, or the “but for” aspect of the mistake-proximate cause-damage equation that stymies many a case.

KBL, LLP v Community Counseling & Mediation Servs.  2014 NY Slip Op 08581 [123   D3d 488]  December 9, 2014  Appellate Division, First Department is a prime example in the accounting malpractice field.

“Defendant is a not-for-profit organization that provides services funded in large part through government agencies. In 2005 and 2006, defendant applied for and obtained funding from the Administration for Children’s Services (ACS).

For 2007, defendant sought approximately $2.7 million in funding from ACS and hired plaintiff to perform an audit and prepare the audited financial statements for its fiscal year ending June 30, 2006, which were required for the application. In May 2007, plaintiff prepared the statements, which indicated twelve deficiencies in defendant’s financial reporting and practices. Defendant forwarded the statements to ACS, which denied the application five days later.”

“”A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” (Garrett v Manaser, 8 AD3d 616, 617 [2d Dept 2004]). Moreover, “[a] contention that a verdict is inconsistent and irreconcilable must be reviewed in the context of the court’s charge, and where it can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” (Rivera v MTA Long Is. Bus, 45 AD3d 557, 558 [2d Dept 2007]).

The court charged the jury:

“An act or omission is regarded as a cause of an injury if it is a substantial factor in bringing about the injury, that is, if it had such an affect in producing the injury that reasonable people would regard it as a cause of the injury.

“[I]f you find that the accountant was negligent that negligence must be the cause of the damages that [defendant] claims, and [defendant] must establish beyond the point of speculation and conjecture that there was a causal connection between its losses and [plaintiff’s] actions.”

Viewed in this light, it can not be said the jury verdict was either contrary to the weight of the evidence or inconsistent. The sole question with regard to causation was why ACS declined to fund defendant for 2007. However, among other things, neither side called anyone from ACS to provide evidence of the reason for ACS’ s decision and testimony from defendant’s CEO downplayed the significance that ACS placed on the audit findings, with the CEO stating: “So there were 12 [audit] findings. They were very insignificant, petty and in a way outrageous that even the refunders, even the funders saw it that way. They could have really beaten us up on those 12. They didn’t.”

Thus, it was not utterly irrational for the jury to find that defendant did not establish “beyond the point of speculation and conjecture that there was a causal connection between its losses and [plaintiff’s] actions.” The jury could find that defendant failed to establish that but for plaintiff’s negligence, ACS would have provided the funding (see Cannonball Fund, Ltd. v Marcum & Kliegman, LLP, 110 AD3d 417 [1st Dept 2013]). Concur—Mazzarelli, J.P., Renwick, Andrias, Saxe and Kapnick, JJ.”