Kraus-Cohn Joint Venture v. Bernfeld

—Order, Supreme Court, New York County (Herman Cahn, J.), entered March 14, 1997, which denied plaintiffs’ motion for partial summary judgment and granted defendant’s cross motion to dismiss the complaint, unanimously affirmed, with costs. Plaintiffs, limited partners of the Gentry Company, seek to hold defendant liable for failing, during the course of preparing Gentry’s tax returns, to discover and report a fraud upon them by their general partner. According to defendant’s expert, however, whose testimony as to the applicable standard of care was essentially undisputed and supported by citation of several accounting authorities, defendant, who was not performing an audit and was merely preparing tax returns, was entitled to rely upon the information supplied to him for that purpose by plaintiffs’ general partner. The record conclusively refutes the allegations of plaintiffs’ accountant that defendant had access to all of the partnership books, records and banking statements, and, indeed, we agree with defendant’s expert that there was nothing on the face of the documents to which defendant did have access that would have alerted him to the existence of a fraudulent design. Accordingly, since plaintiffs, in response to defendant’s cross motion for summary judgment, have failed to adduce evidence raising a material issue as to whether defendant deviated from the applicable standard of care, the complaint was properly dismissed (see, e.g., Alvarez v Prospect Hosp., 68 NY2d 320, 324; Heffernan v Norstar Bank, 125 AD2d 887, 890; Ris v Finkle, 148 Misc 2d 773, 777). Concur — Sullivan, J. P., Milonas, Rosenberger and Andrias, JJ.