Ellen’s Stardust, Inc. v Sturm 2025 NY Slip Op 30488(U) February 6, 2025 Supreme Court, New York County Docket Number: Index No. 651690/2021 is a short and direct decision by Judge: Andrew Borrok In it he merely quotes an interim AD decision about the second amended complaint to demonstrate that a motion against the third amended complaint is unwarranted.

“Reference is made to a Decision and Order of the Appellate Division (NYSCEF Doc. No. 131), dated April 4, 2024, which provided that the plaintiffs stated a cause of action sounding in accounting malpractice and aiding and abetting fraud where the scope of representation was limited to compilation services and the amount of the alleged harm was disclosed in the financial statements because the movant was alleged to be on notice of the potential fraudulent conduct and participated in it:

“We find that the claims for accounting malpractice and aiding and abetting fraud
should not have been dismissed pursuant to CPLR 3211(a)(7) and CPLR 3211(a)(1). A
motion pursuant to CPLR 3211(a)(1) to dismiss a complaint or petition on the ground that a defense is founded on documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff’s or petitioner’s 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]).”

“Thus, the defendants are not correct that they are entitled to dismissal of the causes of action sounding in malpractice (fourth cause of action) or aiding and abetting fraud (fifth cause of action).
It simply does not matter that previously the plaintiff was formerly known as 1650 Broadway or when the alleged fraudulent underlying conduct took place given when it is alleged to have been revealed.
The Court has considered the parties’ remaining arguments and finds them unavailing.”