BENYAMINPOUR v. LIPTON (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for professional negligence, fraud, and breach of fiduciary duty, the plaintiff appeals from an order of the Supreme Court, Nassau County (Christopher G. Quinn, J.), entered December 13, 2021.  The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the amended complaint.

ORDERED that the order is affirmed, with costs.

In November 2020, the plaintiff commenced this action against the defendants, Alan Lipton, an accountant, and his accounting firm, Lipton & Associates, LLP, arising out of accounting services provided by the defendants to the plaintiff and his former business partners in two business ventures related to real property (hereinafter the business entities).  In an amended complaint, the plaintiff alleged, inter alia, causes of action sounding in fraud, aiding and abetting fraud, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, breach of contract, civil conspiracy, and professional negligence.  Prior to commencing this action, the plaintiff and his brother commenced a different action in 2014 against the same former business partners, among others, alleging, inter alia, that the former business partners “wrongfully induced,” “fraudulently induced,” and “directed” Lipton to incorrectly complete tax returns and issue K–1s with regard to the business entities, as part of a scheme to eliminate the plaintiff's interests in said entities and extinguish certain liabilities owed to the plaintiff.  In sum and substance, the plaintiff has repeated those allegations in this action against the defendants.

Following the commencement of this action, the defendants moved pursuant to CPLR 3211(a) to dismiss the amended complaint.  The plaintiff opposed.  In an order entered December 13, 2021, the Supreme Court granted the motion.  The plaintiff appeals.

On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  see Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141, 53 N.Y.S.3d 598, 75 N.E.3d 1159).  “While factual allegations contained in the complaint are deemed true, bare legal conclusions and facts flatly contradicted on the record are not entitled to a presumption of truth” (Symbol Tech., Inc. v. Deloitte & Touche, LLP, 69 A.D.3d 191, 194, 888 N.Y.S.2d 538).  “Whether [the pleader] can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (Ayers v. Bloomberg, L.P., 203 A.D.3d 872, 873, 165 N.Y.S.3d 554;  see Cortlandt St. Recovery Corp. v Bonderman, 31 N.Y.3d 30, 38, 73 N.Y.S.3d 95, 96 N.E.3d 191).

Contrary to the plaintiff's contention, the Supreme Court properly granted, pursuant to CPLR 3211(a)(7), those branches of the defendants' motion which were to dismiss the causes of action alleging fraud, aiding and abetting fraud, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty as duplicative of the cause of action alleging professional negligence in the nature of accounting malpractice.  The causes of action arose from the same set of facts and do not allege distinct damages (see Schwartz v. Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 123 A.D.3d 901, 902, 999 N.Y.S.2d 444).

“On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired” (Collins–Genova v. Louros, 204 A.D.3d 748, 749, 167 N.Y.S.3d 100 [internal quotation marks omitted];  see Weinberg Real Estate Affiliates, LLC v. Weinberg, 231 A.D.3d 775, 776, 219 N.Y.S.3d 699).  “If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period” (Weinberg Real Estate Affiliates, LLC v. Weinberg, 231 A.D.3d at 776, 219 N.Y.S.3d 699 [internal quotation marks omitted] ).

“An action to recover damages for accounting malpractice must be commenced within three years” (Getzel Schiff & Pesce, LLP v. Shtayner, 233 A.D.3d 758, 759, 221 N.Y.S.3d 238;  see CPLR 214[6];  Schwartz v. Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 155 A.D.3d at 803, 64 N.Y.S.3d 70).  “ ‘A cause of action alleging professional malpractice against an accountant accrues upon the client's receipt of the accountant's work product’ ” (Getzel Schiff & Pesce, LLP v. Shtayner, 233 A.D.3d at 759, 221 N.Y.S.3d 238, quoting Schwartz v. Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 155 A.D.3d at 803, 64 N.Y.S.3d 70).  Here, the defendants established, prima facie, that the cause of action alleging professional negligence in the nature of accounting malpractice accrued more than three years before the plaintiff commenced this action.  In opposition, the plaintiff failed to raise a question of fact as to whether this action was commenced within the applicable statute of limitations period, or whether the statute of limitations was tolled or otherwise inapplicable (see id.).  Accordingly, the Supreme Court properly directed dismissal of the cause of action alleging professional negligence in the nature of accounting malpractice as time-barred pursuant to CPLR 3211(a)(5).

With respect to the causes of action arising out of the plaintiff's allegations pertaining to conspiracy, “ ‘New York does not recognize civil conspiracy to commit a tort as an independent cause of action’ ” (Whitfield v. Law Enforcement Empls. Benevolent Assn., 237 A.D.3d 1139, 1140–1141, 233 N.Y.S.3d 615, quoting Clevenger v. Yuzek, 222 A.D.3d 931, 936, 203 N.Y.S.3d 114;  see Alexander & Alexander of N.Y. v. Fritzen, 68 N.Y.2d 968, 969, 510 N.Y.S.2d 546, 503 N.E.2d 102).  “However, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort, and establish that those actions were part of a common scheme” (McSpedon v. Levine, 158 A.D.3d 618, 621, 72 N.Y.S.3d 97;  see Whitfield v. Law Enforcement Empls.  Benevolent Assn., 237 A.D.3d at 1140–1141, 233 N.Y.S.3d 615).  Here, since the plaintiff failed to adequately allege a cause of action for fraud or breach of fiduciary duty, the Supreme Court properly directed dismissal of so much of the amended complaint as alleged civil conspiracy, since it stands or falls with the underlying tort (see Whitfield v. Law Enforcement Empls. Benevolent Assn., 237 A.D.3d at 1141, 233 N.Y.S.3d 615;  McSpedon v. Levine, 158 A.D.3d at 621, 72 N.Y.S.3d 97).

The plaintiff's remaining contentions are without merit.

DUFFY, J.P., FORD, LOVE and GOLIA, JJ., concur.