DEANE LLC v. Liggett Vogt & Webb, P.A., etc., Defendant. (2021)

Order, Supreme Court, New York County (Andrew Borrok, J.), entered June 18, 2020, which, insofar as appealed from, denied defendants Howard G. Brodman, C.P.A. and RBSM LLP's motion for summary judgment dismissing the professional negligence and aiding and abetting breach of fiduciary duty claims, unanimously reversed, on the law, with costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

Defendants are entitled to summary judgment dismissing the professional negligence claims asserted against them as plaintiff has not offered evidence of a departure from a recognized and accepted professional standard for accountants.  “A party alleging a claim of accountant malpractice must show that there was a departure from the accepted standards of practice” (KBL, LLP v. Community Counseling & Mediation Servs., 123 A.D.3d 488, 488, 999 N.Y.S.2d 18 [1st Dept. 2014]).  Plaintiff does not identify any applicable professional standard which would have required defendants to inquire whether the transactions at issue were approved in accordance with the procedures contained in the operating agreement.  To the contrary, the standards proffered by plaintiff's expert permit an accountant engaged for tax preparation services to rely on information furnished by the taxpayer unless it appears to be incorrect, incomplete or inconsistent.  There is no allegation here that the information provided to defendants was incorrect, incomplete or inconsistent.

Summary judgment should also have been granted dismissing the aiding and abetting breach of fiduciary duty claims.  There is no evidence that defendants had actual (not constructive) knowledge that the subject transactions had not been duly authorized (see generally Kaufman v. Cohen, 307 A.D.2d 113, 125, 760 N.Y.S.2d 157 [1st Dept. 2003]).