Plaintiff, a corporation hires and relies on Defendant, and the advice given to outsource human resources and benefits to a third party which takes funds from plaintiff for payment of payroll taxes, then fails to pay the taxing authorities and (surprisingly?) becomes insolvent.

Aside from the plethora of contract issues, is there professional negligence (with its attendant duties) and a breach of fiduciary duty?

Vista Food Exch., Inc. v BenefitMall  2016 NY Slip Op 02923 [138 AD3d 535] April 14, 2016
Appellate Division, First Department tells us that there is no professional negligence where there are no enumerated professionals.

“Because plaintiff did not allege defendants’ violation of a legal duty independent of a contract, the motion court correctly dismissed the promissory estoppel claim in the amended complaint and the negligence/negligent misrepresentation claim in the original complaint (MatlinPatterson ATA Holdings LLC v Federal Express Corp., 87 AD3d 836, 842-843 [1st Dept 2011] [promissory estoppel], lv denied 21 NY3d 853 [2013]; Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987] [negligence]). Further, plaintiff failed to support its negligent misrepresentation claim with sufficient allegations of “a special or privity-like relationship imposing a duty on the defendant[s] to impart correct information to the plaintiff,” or that the information imparted by defendants was incorrect (J.P. Morgan Sec. Inc. v Ader, 127 AD3d 506, 506 [1st Dept 2015] [internal quotation marks omitted]).

To the extent plaintiff has not abandoned the issue on appeal, it failed to state a claim for professional malpractice because, under New York law, defendants are not professionals (see Chase Scientific Research v NIA Group, 96 NY2d 20, 29-30 [2001]). Further, plaintiff failed to state a claim for breach of fiduciary duty, since there are no allegations in the complaint that defendants misled plaintiff by making false misrepresentations (see Roni LLC v Arfa, 74 AD3d 442, 444 [1st Dept 2010], affd 18 NY3d 846 [2011]).