MILLMAN v. Morton E. Marvin, Defendant-Respondent. (2019)

Defendant Marvin made a prima facie showing that he exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in representing plaintiff in negotiating a settlement agreement between plaintiff and his wife (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 [2007] ).  Contrary to plaintiff's contention, given the facts of this case Marvin was not required to submit an expert affidavit in support of his motion (see Boye v. Rubin & Bailin, 152 A.D.3d 1, 9, 56 N.Y.S.3d 57 [1st Dept. 2017] ).

In opposition, plaintiff failed to raise an issue of fact.  His expert affidavit is conclusory (see Aur v. Manhattan Greenpoint Ltd., 132 A.D.3d 595, 596, 20 N.Y.S.3d 6 [1st Dept. 2015] ), and the only factual issue raised by his own affidavit is not material.  It is undisputed that plaintiff decided to file taxes jointly with his wife on the advice of defendant B & D, the couple's accountants.  In his affidavit, plaintiff denies that Marvin advised him to file separately, which conflicts with Marvin's testimony and corroborating evidence that Marvin did so advise him.  However, plaintiff's theory of Marvin's malpractice does not include Marvin's alleged failure to advise him to file separately.

B & D failed to establish prima facie that it adhered to accepted standards of accounting practice.  Its expert affidavit commented specifically on B & D's preliminary tax projection only, but failed, among other things, to set forth the accepted standards of accounting practice in preparing such a projection or those applicable to the other alleged instances of negligence.  Further, B & D's argument that its advice did not proximately cause the parties to file jointly because plaintiff's wife would never have agreed to file separately is undermined by, among other things, its failure to cite any authority for the proposition that spouses need one another's permission to file separate tax returns.

We have considered the parties' remaining arguments for affirmative relief and find them unavailing.