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Chemical Bank v. Brout & Company
Order, Supreme Court, New York County (David B. Saxe, J.), entered September 7, 1990, which, inter alia, denied defendants’ motion pursuant to CPLR 3211 (a) (7) to dismiss the second and third causes of action for failure to state a cause of action, unanimously affirmed, with costs. In December 1983, plaintiff issued to Amfesco Industries Inc. $14.5 million credit in the form of an industrial revenue bond and a line of credit.
Plaintiff has been unable to recover such indebtedness since Amfesco’s November 19, 1985 bankruptcy filing. Giving plaintiff the benefit of all possible favorable inferences which might be drawn from the complaint (Arrington v New York Times Co., 55 NY2d 433, rearg denied 57 NY2d 669, cert denied 459 US 1146), the complaint sufficiently sets forth a cause of action for accountants’ negligence under the criteria set forth in Credit Alliance Corp. v Andersen & Co. (65 NY2d 536).
The accountants were aware that the financial reports audited by them would be used for a particular purpose and that plaintiff intended to rely upon them is made out by defendants’ knowledge of the terms of the industrial revenue bond, which included the requirement that audited financial statements be provided; defendants’ alleged participation, as a key advisor to Amfesco in obtaining financing, in an August 1983 meeting concerning those terms; and by Chemical’s receipt of Amfesco’s audited financial statement for fiscal year 1983 in the August-December 1983 interval.
The crucial element that there be some conduct on the part of the accountants linking them to plaintiff which evinces the accountants’ understanding of plaintiff’s reliance is also sufficiently alleged here on the basis of such direct contact, and as amplified by alleged, repeated direct communications between plaintiff and defendants between June and November 1985 concerning Amfesco’s deteriorating financial condition (Blair Communications v Reliance Capital Group, 157 AD2d 490).
Concur—Carro, J. P., Milonas, Ellerin, Smith and Rubin, JJ.