| Marinelli v Gabriel & Sciacca, CPA, LLP |
| 2012 NY Slip Op 02645 [94 AD3d 826] |
| April 10, 2012 |
| Appellate Division, Second Department |
| Nicolas Marinelli, Appellant, v Gabriel & Sciacca, CPA,LLP, Respondent. |
—[*1] L'Abbate Balkin, Colavita & Contini, LLP, Garden City, N.Y. (Diane P. Whitfield ofcounsel), for respondent.
In an action to recover damages for negligence, the plaintiff appeals from a judgment of theSupreme Court, Nassau County (K. Murphy, J.), entered August 9, 2010, which, upon an order ofthe same court dated June 30, 2010, in effect, granting those branches of the defendant's motionwhich were to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7), is in favor of thedefendant and against him dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff, a part owner of Trio Asbestos Removal Corp. (hereinafter Trio), commencedthis action against an accounting firm retained by Trio to determine the value of the plaintiff'sshares in Trio. The documentary evidence submitted by the defendant failed to conclusivelyestablish a defense to the asserted claims as a matter of law. Thus, the Supreme Court shouldhave denied that branch of the defendant's motion which was pursuant to CPLR 3211 (a) (1) todismiss the complaint (see CPLR 3211 [a] [1]; S.J.J.K. Tennis, Inc. v Confer Bethpage, LLC, 81 AD3d 630[2011]). However, the Supreme Court properly granted that branch of the defendant's motionwhich was to dismiss the complaint pursuant to CPLR 3211 (a) (7). The complaint failed toallege facts that would support a determination that the defendant owed the plaintiff a duty toexercise care in performing the valuation, or voluntarily assumed such a duty (see Parvi vCity of Kingston, 41 NY2d 553, 559 [1977]).
The plaintiff's remaining contention is without merit. Skelos, J.P., Belen, Lott and Miller, JJ.,concur.