Delollis v Margolin, Winer & Evens, LLP (2014 NY Slip Op 06935)
Delollis v Margolin, Winer & Evens, LLP
2014 NY Slip Op 06935
Decided on October 15, 2014
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on October 15, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial DepartmentPETER B. SKELOS, J.P.
THOMAS A. DICKERSON
JOSEPH J. MALTESE
HECTOR D. LASALLE, JJ.


2013-06930
 (Index No. 600824/12)

[*1]John Delollis, et al., respondents, 
vMargolin, Winer & Evens, LLP, appellant.
L'Abbate, Balkin, Colavita & Contini, LLP, Garden City, N.Y. (Scott E. Kossove and Anthony Colavita of counsel), for appellant.
Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP, Uniondale, N.Y. (Jeffrey G. Stark, Danielle B. Gatto, Robert Alexander, pro hac vice, and Ramya Ravindran, pro hac vice, of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for accounting malpractice, the defendant appeals from an order of the Supreme Court, Nassau County (Driscoll, J.), dated June 14, 2013, which denied its motion for partial summary judgment limiting the plaintiffs' damages.
ORDERED that the order is affirmed, with costs.
The Empire State Carpenter's Annuity Fund and Empire State Pension Fund, of which the plaintiffs are trustees, invested in the Income Plus Investment Fund (hereinafter Income Plus), which, in turn, allegedly invested a portion of its assets with Bernard Madoff or Bernard L. Madoff Investment Securities, LLC. The defendant accounting firm allegedly audited the financial statements of Income Plus. The plaintiffs commenced this action to recover damages allegedly sustained as a result of the defendant's malpractice with respect to the audits. The defendant moved for partial summary judgment limiting the plaintiffs' damages. The Supreme Court denied the motion.
While damages may not be based solely on fictitious profits, the defendant failed to establish, as a matter of law, at this stage of the proceedings, that the plaintiffs' claimed damages merely constituted fictitious profits or were speculative (see Hecht v Andover Assoc. Mgt. Corp., 114 AD3d 638). Accordingly, the Supreme Court properly denied the defendant's motion for partial summary judgment limiting the plaintiffs' damages (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).
SKELOS, J.P., DICKERSON, MALTESE and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


