140 Misc. 2d 78 | N.Y. Sup. Ct. | 1988
OPINION OF THE COURT
Plaintiff Allied International Bancorp, Inc. (hereinafter called plaintiff or Allied) is a bank holding company organized under the laws of Delaware, with its principal place of business in New York. It owns all the stock of Allied Bank International (Allied Bank) a Federally chartered corporation with its principal offices in New York and a representative office (formerly a branch office) in London and of Allied International Guernsey Ltd. (Allied Guernsey) a corporation organized under the laws of Guernsey, with its principal offices in the Channel Islands.
Defendant Peat, Marwick, Mitchell & Co. (hereinafter called defendant or Peat Marwick U.S.) is a partnership doing business in New York. Peat Marwick Guernsey is a partnership doing business in the Channel Islands. The two partnerships have no common partners and act independently.
Plaintiff’s complaint alleges that defendant submitted reports on Allied Guernsey in 1982, 1983, 1984, and 1985, and alleges fraudulent misrepresentations and omission, negligence, and "breach of its engagement agreements with Allied and [Allied Guernsey] all in connection with (a) the aforesaid audits of the consolidated financial statements of Allied and its subsidiaries and (b) the aforesaid audits of the financial statements of [Allied Guernsey].” In its complaint plaintiff refers to defendant after its first mention as "Peat”. It refers to the Peat Marwick U.S. partnership in London as "Peat’s London office (hereinafter Peat London)” and to the Peat Marwick U.S. partnership in the Channel Islands as "Peat’s offices in the Channel Islands (hereinafter Peat Cl)”. Plaintiff’s complaint alleges that one Michael Vanner worked in its Trade Finance Department and performed fraudulent acts from 1980 through 1984 that resulted in bad loans by Allied Guernsey and the London office of Allied Bank and that defendant failed to discover such fraud or discovered it and failed to provide notice to plaintiff and Allied Guernsey.
Defendant has moved for an order dismissing each cause of action.
Pursuant to CPLR 3211 (a) (7) (to dismiss third cause of action because the claim is for malpractice and losses are not recoverable in contract).
Until the decision by the Court of Appeals in Video Corp. v Flatto Assocs. (58 NY2d 1026; see also, Sears, Roebuck & Co. v Enco Assocs., 43 NY2d 389) the argument might with reason have been made that where a contract has been made not for a specific result but for professional services to be performed