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Marine Midland Bank v. Thornton

Appellate Division of the Supreme Court of New York, First Department
Apr 29, 1999
260 A.D.2d 318 (N.Y. App. Div. 1999)

Opinion

April 29, 1999

Appeal from the Supreme Court, New York County (Ira Gammerman, J.).


The complaint is deficient because it does not allege that defendant prepared the financial reports knowing that its client would be showing them to plaintiff ( see, Westpac Banking Corp. v. Deschamps, 66 N.Y.2d 16, 19). We reject plaintiff's argument that the number of "financial institutions" that could have made a multi-million dollar loan to defendant's client is so small that if, as the complaint alleges; defendant knew that its client would be showing the financial reports it was preparing to "various financial institutions" for the purpose of obtaining a multi-million dollar loan, then it also knew, or should have known, that its client would be showing the reports to plaintiff ( see, supra; Iselin Co. v. Mann Judd Landau, 71 N.Y.2d 420, 426, citing Ultramares Corp. v. Touche, 255 N.Y. 170; compare, White v. Guarente, 43 N.Y.2d 356, 359-361; LaSalle Natl. Bank v. Duff Phelps Credit Rating Co., 951 F. Supp. 1071, 1093-1094). Nor does it avail plaintiff to allege that when a "collateral audit" was being performed by its own accountant, defendant's representatives were present and exhibited the statements it had prepared, or that defendant was otherwise aware that its client was seeking financing from plaintiff after the statements had already been prepared ( see, Security Pac. Bus. Credit v. Peat Marwick Main Co., 79 N.Y.2d 695, 705; Iselin Co. v. Mann Judd Landau, supra, at 427). The mere conclusory assertion of recklessness and intent, appended to the identical set of facts as are alleged in the negligence claim, do not meet the special pleading standards required under CPLR 3016 (b) ( see, Credit Alliance Corp. v. Andersen Co., 65 N.Y.2d 536, 554).

Concur — Nardelli, J. P., Tom, Lerner, Mazzarelli and Friedman, JJ.


Summaries of

Marine Midland Bank v. Thornton

Appellate Division of the Supreme Court of New York, First Department
Apr 29, 1999
260 A.D.2d 318 (N.Y. App. Div. 1999)
Case details for

Marine Midland Bank v. Thornton

Case Details

Full title:MARINE MIDLAND BANK, Appellant, v. GRANT THORNTON, L. L. P., Respondent

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 29, 1999

Citations

260 A.D.2d 318 (N.Y. App. Div. 1999)
689 N.Y.S.2d 81

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