| Israel Discount Bank of N.Y. v EisnerAmper LLP |
| 2016 NY Slip Op 02149 |
| Decided on March 24, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on March 24, 2016
Tom, J.P., Friedman, Saxe, Richter, JJ.
589 651135/14
v
EisnerAmper LLP, Defendant-Respondent.
Otterbourg P.C., New York (Richard G. Haddad of counsel), for appellant.
Winston & Strawn LLP, Chicago, IL (Linda T. Coberly of the bar of the State of Illinois, admitted pro hac vice of counsel), for respondent.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered November 14, 2014, which granted defendant's motion pursuant to CPLR 3211 to dismiss the complaint with prejudice, unanimously affirmed, with costs.
Plaintiff, a lender to asset-based lender nonparty Oak Rock Financial, LLC, alleges fraud against defendant, Oak Rock's accountant, based on defendant's failure to discover that Oak Rock's founder and manager was manipulating Oak Rock's loans receivable. However, the complaint fails to allege that the opinion was "based on grounds so flimsy as to lead to the conclusion that there was no genuine belief in its truth" or that the opinion amounted to "a reckless misstatement" for which defendant could be held liable for fraud (see State St. Trust Co. v Ernst , 278 NY 104, 111-112 [1938], citing Ultramares Corp. v Touche , 255 NY 170 [1931]). At most, the complaint alleges negligence, which, in the absence of privity or some words or action by defendant directed to plaintiff, does not lie (see Credit Alliance Corp. v Arthur Andersen & Co. , 65 NY2d 536, 551 [1985]; Houbigant, Inc. v Deloitte & Touche , 303 Ad2d 92 [1st Dept 2003]]). None of the alleged "red flags" pleaded in the complaint creates an inference that defendant "had notice of particular circumstances raising doubts as to the veracity" of the information provided to it by Oak Rock regarding Oak Rock's accounts receivable (Foothill Capital Corp. v Grant Thornton, L.L.P. , 276 AD2d 437, 437 [1st Dept 2000]).
We have considered plaintiff's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 24, 2016
CLERK