The most basic question in any professional negligence setting is what are the base elements of a professional negligence claim?  Before one considers statutes of limitation, the amounts of damage, and many other collateral issues, the initial question to be decided is the standard of practice and how/whether the defendant departed from that standard.

Board of Trustees of IBEW Local 43 Elec. Contrs. Health & Welfare, Annuity & Pension Funds v D’Arcangelo & Co., LLP   January 2, 2015  Appellate Division, Fourth Department is an excellent primer from the 4th Department.

“”Accounting malpractice or professional negligence contemplates a failure to exercise due care and proof of a material deviation from the recognized and accepted professional standards for accountants and auditors, generally measured by [generally accepted accounting principles] and [generally accepted auditing standards (GAAS)] promulgated by the American Institute of Certified Public Accountants, which proximately causes damage to plaintiff” (Cumis Ins. Socy. v Tooke, 293 AD2d 794, 797-798 [2002]; see Berg v Eisner LLP, 94 AD3d 496, 496 [2012]). Here, plaintiff sufficiently alleged that defendant committed malpractice in not adhering to GAAS by, inter alia, failing to obtain a SAS 70 report, and that defendant’s negligence proximately caused plaintiff to sustain damages (see Sacher v Beacon Assoc. Mgt. Corp., 114 AD3d 655, 657 [2014]). Although defendant contends that GAAS did not require it to obtain a SAS 70 report, it did not submit any evidence establishing that fact in support of its motion (see generally C.P. Ward, Inc. v Deloitte & Touche LLP, 74 AD3d 1828, 1829-1830 [2010]; Cumis Ins. Socy., 293 AD2d at 798), and we disagree with the court that such a determination could be made as a matter of law in the absence of such evidence (see Berg, 94 AD3d at 496). With respect to proximate cause, “[a]s a general rule, issues of proximate cause[,] [including superceding cause,] are for the trier of fact” (Hahn v Tops Mkts., LLC, 94 AD3d 1546, 1548 [2012] [internal quotation marks omitted], citingDerdiarian v Felix Contr. Corp., 51 NY2d 308, 312 [1980], rearg denied 52 NY2d 784 [1980]; see Bachmann, Schwartz & Abramson v Advance Intl., 251 AD2d 252, 253 [1998]), and we see no basis to depart from that general rule in this case (see Sacher, 114 AD3d at 657). Plaintiff alleged that defendant should have obtained the SAS 70 report to confirm the existence and valuation of the funds’ investments. Plaintiff further alleged that, had defendant done so, it would have discovered that it could not confirm the existence of those securities, and plaintiff could have redeemed its investments.”