Estate of Burke v. Peter J. Repetti & Co.

255 A.D.2d 483, 680 N.Y.S.2d 645, 1998 N.Y. App. Div. LEXIS 12636

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1998
• Status: Published

Opinion

—In an action to recover for accounting malpractice and breach of contract, the plaintiff appeals from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated September 18, 1997, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

“A claim of professional negligence requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury” (Georgetti v United Hosp. Med. Ctr., 204 AD2d 271, 272; see also, 530 E. 89 Corp. v Unger, 43 NY2d 776; Greene v Payne Wood & Littlejohn, 197 AD2d 664, 666). The defendants demonstrated prima facie that they were entitled to summary judgment. They offered an expert’s affidavit which did not merely offer bare, conclusory assertions (see, Maust v Arseneau, 116 AD2d 1012), but dealt fully with the plaintiffs claims, and which averred that the defendants’ actions were consistent with accepted accounting practice. The plaintiff failed to come forward with evidence that the defendants’ actions deviated from accepted accounting practice (see, Whalen v Victory Mem. Hosp., 187 AD2d 503). The conclusory affidavit of the administrator of the plaintiff estate, made without personal knowledge of the relevant facts, failed to raise a triable issue of fact. The affirmation of the plaintiffs attorney, also not based on personal knowledge, was likewise inadequate. The defendants were therefore entitled to summary judgment.

The plaintiffs remaining contentions are without merit. Copertino, J. P., Sullivan, Pizzuto and Goldstein, JJ., concur.