Marine Midland Bank v. Grant Thornton, L. L. P.

Appellate Division of the Supreme Court of New York

Marine Midland Bank v. Grant Thornton, L. L. P.

260 A.D.2d 318, 689 N.Y.S.2d 81, 1999 N.Y. App. Div. LEXIS 4371

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 29, 1999

StatusPublished

Cited by3 cases

This text of 260 A.D.2d 318 (Marine Midland Bank v. Grant Thornton, L. L. P.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Marine Midland Bank v. Grant Thornton, L. L. P., 260 A.D.2d 318, 689 N.Y.S.2d 81, 1999 N.Y. App. Div. LEXIS 4371 (N.Y. Ct. App. 1999).

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Opinion

—Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered December 18, 1998, dismissing the complaint, and bringing up for review a prior order which, in an action by a lender against an accounting firm for negligence and fraud in preparing a borrower’s financial statements, granted defendant’s motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

The complaint is deficient because it does not allege that de[319]*319fendant prepared the financial reports knowing that its client would be showing them to plaintiff (see, Westpac Banking Corp. v Deschamps, 66 NY2d 16, 19). We reject plaintiffs 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 NY2d 420, 426, citing Ultramares Corp. v Touche, 255 NY 170; compare, White v Guarente, 43 NY2d 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 NY2d 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 NY2d 536, 554). Concur — Nardelli, J. P., Tom, Lerner, Mazzarelli and Friedman, JJ.

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—Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered December 18, 1998, dismissing the complaint, and bringing up for review a prior order which, in an action by a lender against an accounting firm for negligence and fraud in preparing a borrower’s financial statements, granted defendant’s motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

The complaint is deficient because it does not allege that de[319]*319fendant prepared the financial reports knowing that its client would be showing them to plaintiff (see, Westpac Banking Corp. v Deschamps, 66 NY2d 16, 19). We reject plaintiffs 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 NY2d 420, 426, citing Ultramares Corp. v Touche, 255 NY 170; compare, White v Guarente, 43 NY2d 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 NY2d 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 NY2d 536, 554). Concur — Nardelli, J. P., Tom, Lerner, Mazzarelli and Friedman, JJ.

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260 A.D.2d 318, 689 N.Y.S.2d 81, 1999 N.Y. App. Div. LEXIS 4371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marine-midland-bank-v-grant-thornton-l-l-p-nyappdiv-1999.

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