Opinion
2012-12-11
Adriana BITTER, et al., Plaintiffs–Appellants, v. Louis N. RENZO, et al., Defendants–Respondents, Ronkonkoma Operations LLC, et al., Defendants.
Napoli Bern Ripka Shkolnik, LLP, New York (Adam J. Gana of counsel), for appellant. Ganfer & Shore, LLP, New York (Mark A. Berman of counsel), for Louis N. Renzo, respondent.
Napoli Bern Ripka Shkolnik, LLP, New York (Adam J. Gana of counsel), for appellant. Ganfer & Shore, LLP, New York (Mark A. Berman of counsel), for Louis N. Renzo, respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Gregory W. Gilliam of counsel), for Charles Raich, respondent.
ANDRIAS, J.P., FRIEDMAN, DeGRASSE, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered April 16, 2012, which, to the extent appealed from as limited by the briefs, granted defendant Charles Raich's motion to dismiss the breach of fiduciary duty claim, and granted defendant Louis N. Renzo's motion to dismiss the aiding and abetting breach of fiduciary duty claim, unanimously affirmed, without costs.
The duty owed by an accountant to a client is generally not fiduciary in nature ( Able Energy, Inc. v. Marcum & Kliegman LLP, 69 A.D.3d 443, 444, 893 N.Y.S.2d 36 [1st Dept. 2010];DG Liquidation v. Anchin, Block & Anchin, 300 A.D.2d 70, 70–71, 750 N.Y.S.2d 753 [1st Dept. 2002] ). Nor does a conventional business relationship, without more, create a fiduciary relationship ( Friedman v. Anderson, 23 A.D.3d 163, 166, 803 N.Y.S.2d 514 [1st Dept. 2005] ).
Here, plaintiffs alleged only that Raich agreed to provide accounting and consulting services for Scalamandre, the company in which plaintiffs held a financial interest, and its board of directors. This does not suffice to allege that Raich owed plaintiffs a fiduciary duty. In light of the insufficient allegations of any fiduciary duty owed by Raich, the trial court also correctly dismissed the claim of aiding and abetting a breach of fiduciary duty ( see Kaufman v. Cohen, 307 A.D.2d 113, 125, 760 N.Y.S.2d 157 [1st Dept. 2003] ).
To the extent that plaintiffs argue on appeal that defendant Raich owed plaintiffs a fiduciary duty, not as an accountant or advisor, but as a “business broker,” our review of the record reveals that this theory of liability was not articulated in the complaint or in plaintiffs' papers opposing dismissal. Accordingly, we decline to consider this claim ( see e.g. Sonnenschein v. Douglas Elliman–Gibbons & Ives, 96 N.Y.2d 369, 376–377, 729 N.Y.S.2d 62, 753 N.E.2d 857 [2001];Recovery Consultants v. Shih–Hsieh, 141 A.D.2d 272, 276, 534 N.Y.S.2d 374 [1st Dept. 1988] ).