Gerber Trade Finance, Inc. v. Skwiersky, Alpert & Bressler, LLP

Nov 23, 2004
Versions:12 A.D.3d 286
786 N.Y.S.2d 9
2004 N.Y. App. Div. LEXIS 14164

Order, Supreme Court, New York County (Charles Edward Ramos, J.), entered April 15, 2004, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

This is an action for negligence and negligent misrepresentation. Defendant is the accountant that prepared financial statements for the now-defunct Serrano, L.L.C., allegedly based on a faulty audit it had conducted of that company in 1999. Based on those statements, plaintiff continued to advance loans to Serrano. It is clear that plaintiff failed to raise a triable issue of fact as to whether defendant’s alleged negligence was a proximate cause of plaintiffs losses (see Laub v Faessel, 297 AD2d 28, 31 [2002]). The evidence clearly shows that Serrano failed because its biggest customer, K-Mart, had canceled two large purchase orders, causing Serrano’s ultimate financial ruin nearly two years after the alleged accounting error in 1999.

Plaintiffs expert’s report and affidavit were also insufficient to raise a triable issue as to defendant’s alleged negligence. Essentially, plaintiffs expert opined that certain credits granted to Serrano were “fictitious” and thus improperly used to reduce accounts payable, leading to the audit reflection of a profit instead of a loss for 1999. However, this expert’s conclusions are unsupported by facts, they are dependent on his personal opinion rather than on accounting principles, and are at odds *287with the uncontradicted testimony of a Serrano officer. The expert’s opinion was conclusory, speculative and beyond the scope of expert opinion (see generally Kelly v Academy Broadway Corp., 206 AD2d 794, 795-796 [1994]; Espinosa v A & S Welding & Boiler Repair, 120 AD2d 435, 437 [1986]). Concur—Tom, J.P., Ellerin, Williams, Lerner and Catterson, JJ.