KRISTINA DENISE ENTERPRISES INC v. ARNOLD

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Supreme Court, Appellate Division, Second Department, New York.

KRISTINA DENISE ENTERPRISES, INC., et al., appellants, v. Sandra ARNOLD, etc., et al., respondents.

Decided: June 26, 2007

ROBERT W. SCHMIDT, J.P., FRED T. SANTUCCI, PETER B. SKELOS, and ROBERT A. LIFSON, JJ. Regina Felton, Brooklyn, N.Y., for appellants. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Brett A. Scher and Anastasios P. Tonorezos of counsel), for respondents.

In an action, inter alia, to recover damages for professional malpractice, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated December 21, 2005, as denied that branch of their motion which was for summary judgment on the issue of liability and granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 A claim of malpractice requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury (see D.D. Hamilton Textiles v. Estate of Mate, 269 A.D.2d 214, 703 N.Y.S.2d 451;  Estate of Burke v. Repetti & Co., 255 A.D.2d 483, 680 N.Y.S.2d 645).   The plaintiffs failed to establish a prima facie case of malpractice since there was no evidence to support a finding that the alleged negligence proximately caused their injuries (see e.g. Merz v. Seaman, 265 A.D.2d 385, 389, 697 N.Y.S.2d 290).   Even if, as the plaintiffs alleged, the defendants departed from generally-accepted accounting principles in their preparation of a compilation report on the plaintiffs' financial statements (see Italia Imports v. Weisberg & Lesk, 220 A.D.2d 226, 631 N.Y.S.2d 363), the plaintiffs failed to establish, prima facie, that their injuries were proximately caused by such departure rather than their “severe financial distress and inability to meet tax obligations” (D.D. Hamilton Textiles v. Estate of Mate, supra at 215, 703 N.Y.S.2d 451).   Since the plaintiffs failed to meet their burden, the sufficiency of the opposing papers need not be considered (see e.g. O'Leary v. Bravo Hylan, LLC, 8 A.D.3d 542, 778 N.Y.S.2d 700).

In addition, the defendants established their entitlement to judgment as a matter of law by demonstrating through their expert's affidavit that any departures from the accepted standards of practice were not a proximate cause of the plaintiffs' alleged injuries.   In opposition, the plaintiffs failed to raise a triable issue of fact through the affidavit of their purported expert, who was not a licensed or registered certified public accountant (see O'Boy v. Motor Coach Indus., Inc., 39 A.D.3d 512, 834 N.Y.S.2d 231;  see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

The plaintiffs' remaining contentions are without merit.

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