Opinion
2485-2486
December 10, 2002.
Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about April 4, 2002, which granted defendant's motion for summary judgment only to the extent of dismissing the third cause of action for breach of fiduciary duty, and order, same court and Justice, entered June 27, 2002, which, upon the grant of reargument, adhered to the aforesaid order, unanimously affirmed, with costs.
William J. Davis, for plaintiff-respondent-appellant.
Dan L. Goldwasser, for defendant-appellant-respondent.
Before: ANDRIAS, J.P., SAXE, ROSENBERGER, FRIEDMAN, JJ.
Summary judgment dismissing plaintiff's cause of action for accounting malpractice was properly denied since the record discloses the existence of material triable issues of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557; Alvarez v. Prospect Hosp., 68 N.Y.2d 320), among them, whether defendant's failure to discover and/or report discrepancies in a computer program or irregularities with respect to inventory was a proximate cause of plaintiff's losses.
The cause of action for breach of fiduciary duty was properly dismissed since the duty owed by an accountant to a client is generally not fiduciary in nature (Nate B. Frances Spingold Found. v. Wallin, Simon, Black Co., 184 A.D.2d 464, 465), and there was no showing of the limited circumstances in which such a duty might arise (see e.g. Lavin v. Kaufman, Greenhut, Lebowitz Forman, 226 A.D.2d 107).
We have considered the parties' remaining arguments for affirmative relief and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.