| Bitter v Renzo |
| 2012 NY Slip Op 08453 [101 AD3d 465] |
| December 11, 2012 |
| Appellate Division, First Department |
| Adriana Bitter et al., Appellants, v Louis N. Renzo et al.,Respondents, et al., Defendants. |
—[*1] Ganfer & Shore, LLP, New York (Mark A. Berman of counsel), for Louis N. Renzo,respondent. Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Gregory W. Gilliam ofcounsel), for Charles Raich, respondent.
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered April 16, 2012,which, to the extent appealed from as limited by the briefs, granted defendant Charles Raich'smotion to dismiss the breach of fiduciary duty claim, and granted defendant Louis N. Renzo'smotion to dismiss the aiding and abetting breach of fiduciary duty claim, unanimously affirmed,without costs.
The duty owed by an accountant to a client is generally not fiduciary in nature (Able Energy, Inc. v Marcum & KliegmanLLP, 69 AD3d 443, 444 [1st Dept 2010]; DG Liquidation v Anchin, Block &Anchin, 300 AD2d 70, 70-71 [1st Dept 2002]). Nor does a conventional businessrelationship, without more, create a fiduciary relationship (Friedman v Anderson, 23 AD3d 163, 166 [1st Dept 2005]).
Here, plaintiffs alleged only that Raich agreed to provide accounting and consulting servicesfor Scalamandre, the company in which plaintiffs held a financial interest, and its board ofdirectors. This does not suffice to allege that Raich owed plaintiffs a fiduciary duty. In light ofthe insufficient allegations of any fiduciary duty owed by Raich, the trial court also correctlydismissed the claim of aiding and abetting a breach of fiduciary duty (see Kaufman vCohen, 307 AD2d 113, 125 [1st Dept 2003]).
To the extent that plaintiffs argue on appeal that defendant Raich owed plaintiffs a fiduciaryduty, not as an accountant or advisor, but as a "business broker," our review of the record revealsthat this theory of liability was not articulated in the complaint or in plaintiffs' papers opposingdismissal. Accordingly, we decline to consider this claim (see Sonnenschein v DouglasElliman-Gibbons & Ives, 96 NY2d 369, 376-377 [2001]; Recovery Consultants vShih-Hsieh, 141 AD2d 272, 276 [1st Dept 1988]). Concur—Andrias, J.P., Friedman,DeGrasse and Manzanet-Daniels, JJ.