In a law suit arising from divorce, Husband sues both a lawyer and an accountant.  Motions to dismiss result in a split decision.  Millman v Blatt & Dauman, LLP  2018 NY Slip Op 30016(U)
January 3, 2018  Supreme Court, New York County  Docket Number: 652002/15  Judge: Lynn R. Kotler  demonstrates how the professional’s roles differed.

“The following facts are alleged in the verified complaint. During all relevant times, plaintiff was engaged in a divorce from his wife, non-party Gladys Millman. Plaintiff claims that B&D provided negligent tax advice insofar as it wrongly advised both plaintiff and his wife that their taxes would be less if they filed their taxes for the year 2013 jointly. Plaintiff admits that B&D later corrected this advice, acknowledging that “a separate tax filing would achieve greater savings to plaintiff.” Plaintiff claims that Marvin, his lawyer in the underlying divorce proceeding, knew but failed to inform
him that B&D was giving tax advice to both him and his wife during the divorce proceedings, and
the resultant conflict of interest. Further, plaintiff claims that Marvin negligently negotiated a provision into the separation agreement between plaintiff and his wife requiring the parties to file joint tax return, “without protecting plaintiff’s interest by permitting the parties to revisit that issue depending on how their future estimated returns” (sic).”

“B&D’s motion must be denied. B&D has not met its burden on this motion by coming forward with
evidence that it failed to exercise the ordinary reasonable skill and knowledge commonly possessed by an accountant when it rendered incorrect advice in the January 24, 2014 email. Indeed, Ross’ affidavit is conclusory, insofar as it merely reiterates that the original incorrect advice was based upon incomplete information without explaining what that information was and demonstrating that an ordinary accountant would have rendered the same incorrect advice based upon said information using reasonable skills and knowledge. Therefore, B&D has failed to establish that it was not negligent as a matter of law.

Further, neither B&D nor Marvin have established that their alleged negligence was not a proximate
cause of plaintiff’s damages as a matter of law, to the extent they claim that plaintiff’s wife would
not have agreed to file separately. Plaintiff’s wife’s testimony on this point requires a credibility determination, which is not appropriate on a motion for summary judgment, since plaintiff vehemently disputes his wife’s claims and maintains that he would have filed separately but for the January 24, 2014 email. This disputed issue of fact also remains for trial.

B&D further has failed to come forward with evidence that plaintiff waived any conflict of interest
B&D had in jointly advising both plaintiff and his wife and/or whether said conflict was a proximate
cause of plaintiff’s damages.  As for Marvin’s motion, however, that motion must be granted. On a claim for legal malpractice, plaintiff must establish that Marvin “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” and that but for Marvin’s negligence, plaintiff would have avoided damages” (Utica Gas. Co., supra [internal citations and quotations omitted]). Here, Marvin has demonstrated prima facie that he was not negligent and that even if he was negligent in failing to negotiate the separation agreement, this negligence was not a proximate cause of plaintiff’s economic damages. Indeed, plaintiff agreed to file his taxes jointly with his wife based upon B&D’s advice that it would be financially advantageous to him. Otherwise, to the extent that plaintiff claims that Marvin failed to negotiate a provision in the settlement agreement allowing the parties to revisit the tax filing status, plaintiff has failed to raise a triable issue of fact on this point that such an act was negligent, albeit even legally enforceable. Accordingly, Marvin’s motion is granted, and plaintiff’s claims and B&D’s crossclaims against him are hereby severed and dismissed.”