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COURT SHOULD NOT HAVE ORDERED AN ACCOUNTING BEFORE DETERMINING A SUMMARY JUDGMENT MOTION, NEITHER PARTY REQUESTED AN ACCOUNTING (SECOND DEPT).

The Second Department determined the judge should not have ordered an accounting before deciding a summary judgment motion. Neither party had requested and accounting:

The plaintiffs, which are affiliated not-for-profit organizations, commenced this action against the defendant, their former accountant, alleging that it breached contractual and fiduciary duties by preparing misleading audit reports for them for several years, which caused the plaintiffs to suffer serious financial harm. In response, the defendant asserted counterclaims for an account stated and to recover damages pursuant to CPLR 3016(f) for breach of contract. Shortly after the plaintiffs filed a reply to the counterclaims, the defendant moved for summary judgment on the counterclaims. The plaintiffs opposed the motion. The Supreme Court held the defendant’s motion in abeyance pending an accounting even though neither party requested an accounting. The defendant appeals, by permission.

“Generally, a court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party'”… . Here, an accounting was not requested and, under the circumstances, it was an improvident exercise of discretion for the Supreme Court to, sua sponte, grant such relief … . Samuel Field YM & YWHA, Inc. v Irvings Roth & Rubin, PLLC, 2017 NY Slip Op 06208, Second Dept 8-16-17

 

CIVIL PROCEDURE (JUDGES, COURT SHOULD NOT HAVE ORDERED AN ACCOUNTING BEFORE DETERMINING A SUMMARY JUDGMENT MOTION, NEITHER PARTY REQUESTED AN ACCOUNTING (SECOND DEPT))/JUDGES (COURT SHOULD NOT HAVE ORDERED AN ACCOUNTING BEFORE DETERMINING A SUMMARY JUDGMENT MOTION, NEITHER PARTY REQUESTED AN ACCOUNTING (SECOND DEPT))/SUA SPONTE (CIVIL PROCEDURE, COURT SHOULD NOT HAVE ORDERED AN ACCOUNTING BEFORE DETERMINING A SUMMARY JUDGMENT MOTION, NEITHER PARTY REQUESTED AN ACCOUNTING (SECOND DEPT))

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