Opinion
589, 651135/14.
03-24-2016
ISRAEL DISCOUNT BANK OF NEW YORK, etc., et al., Plaintiff–Appellant, v. EISNERAMPER LLP, Defendant–Respondent.
Otterbourg P.C., New York (Richard G. Haddad of counsel), for appellant. Winston & Strawn LLP, Chicago, IL (Linda T. Coberly of the bar of the State of Illinois, admitted pro hac vice of counsel), for respondent.
Otterbourg P.C., New York (Richard G. Haddad of counsel), for appellant.
Winston & Strawn LLP, Chicago, IL (Linda T. Coberly of the bar of the State of Illinois, admitted pro hac vice of counsel), for respondent.
TOM, J.P., FRIEDMAN, SAXE, RICHTER, JJ.
Opinion Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered November 14, 2014, which granted defendant's motion pursuant to CPLR 3211 to dismiss the complaint with prejudice, unanimously affirmed, with costs. Plaintiff, a lender to asset-based lender nonparty Oak Rock Financial, LLC, alleges fraud against defendant, Oak Rock's accountant, based on defendant's failure to discover that Oak Rock's founder and manager was manipulating Oak Rock's loans receivable. However, the complaint fails to allege that the opinion was “based on grounds so flimsy as to lead to the conclusion that there was no genuine belief in its truth” or that the opinion amounted to “a reckless misstatement” for which defendant could be held liable for fraud (see State St. Trust Co. v. Ernst, 278 N.Y. 104, 111–112, 15 N.E.2d 416 [1938], citing Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 [1931] ). At most, the complaint alleges negligence, which, in the absence of privity or some words or action by defendant directed to plaintiff, does not lie (see Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 551, 493 N.Y.S.2d 435, 483 N.E.2d 110 [1985] ; Houbigant, Inc. v. Deloitte & Touche, 303 A.D.2d 92, 753 N.Y.S.2d 493 [1st Dept.2003] ). None of the alleged “red flags” pleaded in the complaint creates an inference that defendant “had notice of particular circumstances raising doubts as to the veracity” of the information provided to it by Oak Rock regarding Oak Rock's accounts receivable (Foothill Capital Corp. v. Grant Thornton, L.L.P., 276 A.D.2d 437, 437, 715 N.Y.S.2d 389 [1st Dept.2000] ).
We have considered plaintiff's remaining contentions and find them unavailing.