This is a commercial action commenced on July 8, 2011 by the State of New York Workers' Compensation Board ("WCB") in its capacities as the governmental entity charged with the administration of the Workers' Compensation Law and as successor in interest to the Healthcare Industry Trust of New York ("HITNY"), the Wholesale and Retail Workers' Compensation Trust of New York ("WRWCT"), the Transportation Industry Workers' Compensation Trust ("TRIWCT"), the Trade Industry Workers' Compensation Trust for Manufacturers ("TIWCT"), the Real Estate Management Trust of New York ("REMTNY"), the Public Entity Trust of New York ("PETNY"), the New York State Cemeteries Trust ("NYSCT") and the Elite Contractors Trust of New York ("ECTNY") (collectively "the Trusts"). Defendants UHY LLP ("UHY") and SGRisk, LLC ("SGRisk") move pursuant to CPLR 3211 to dismiss the complaint.

BACKGROUND

As alleged in the WCB's complaint, each of the Trusts is a group self-insured trust ("GSIT") formed pursuant to Workers' Compensation Law ("WCL") § 50-a. Members of the Trusts were employers within a particular industry that conducted business in New York State and were required to provide workers' compensation insurance to employees.

The Trusts were authorized to operate as GSITs by the WCB during the period from September 1999 through January 2002. Due to their substantial accumulated deficits, ranging from $4 million for NYSCT up to $170 million for HITNY, and the inability of the Trusts to properly manage their deficits, the WCB assumed the administration of, and became successor in interest to, each Trust between October 2007 and January 2010.^[FN1]

Compensation Risk Managers, LLC ("CRM") served as group administrator and third-party administrator for the Trusts from their inception through September 2008. CRM is a wholly-owned subsidiary of CRM USA, which, in turn, is a wholly-owned subsidiary of CRM Holdings. The complaint alleges that CRM had a financial incentive to influence, control and manipulate the Trusts' actuarial estimates and audited financial statements in order to bolster the initial public offering ("IPO") of CRM Holdings. The more favorable the Trusts' financial statements appeared, the better the chance for CRM to persuade new employers to join the Trusts and to retain existing members, thereby bringing more profits to CRM and increasing the return on the IPO. Conversely, maintaining adequate reserve levels for the Trusts allegedly would have resulted in increased member contributions, which would have made the Trusts a less financially [*2]attractive option for workers' compensation coverage, decreased CRM's revenues and reduced the IPO price. Further, CRM allegedly had a financial incentive to accept Trust applicants and maintain existing Trust members with poor loss histories and high experience modifiers due to the manner in which it received fees.

Pursuant to WCB regulations, GSITs are required to submit an audited financial statement and an actuarial report to the WCB each year. CRM was responsible for choosing a certified public accountant and an actuary to prepare these reports and for delivering the reports to the WCB. CRM contracted with UHY to provide independent, audited financial statements and with SGRisk to provide actuarial reports.

The WCB claims that SGRisk and UHY knowingly and intentionally manipulated the Trusts' actuarial estimates and independent financial audits to conceal CRM's wrongdoing and to allow CRM to keep member contribution rates artificially low. Defendants allegedly engaged in this manipulation of actuarial estimates and financial statements so that CRM would continue to retain them to perform services for the Trusts. In connection with the foregoing allegations, the WCB observes that the Trusts' annual reports for 2006 (and thereafter)

reported dramatically increased deficits as compared with pre-2006 reports. For example, HITNY reported a deficit of almost $76 million for the year ending December 31, 2006, whereas its reported deficit was under $6 million for the preceding year.

The complaint alleges that the manipulation of actuarial estimates by SGRisk caused the Trusts to become underfunded and/or insolvent, and the manipulation of the Trusts' annual financial statements by UHY obscured the Trusts' true financial conditions, all of which perpetuated CRM's improper administration and led to the Trusts' insolvency. Five causes of action are alleged against each defendant: (1) breach of fiduciary duty; (2) breach of contract; (3) aiding and abetting breaches of duty by CRM and others; (4) fraud; and (5) unjust enrichment. Defendants move separately to dismiss each of these causes of action.

LEGAL STANDARD

Under CPLR 3211 (a) (1) dismissal is warranted if documentary evidence conclusively establishes a defense as a matter of law" (Haire v Bonelli, 57 AD3d 1354, 1356 [3d Dept 2008], citing Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]; see Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]; Angelino v Michael Freedus, D.D.S., P.C., 9 AD3d 1203, 1205 [3d Dept 2010]). On such a motion, "affidavits submitted by a defendant do not constitute documentary evidence upon which a proponent of dismissal can rely" (Crepin v Fogarty, 59 AD3d 837, 838 [3d Dept 2009]).

On a motion to dismiss made pursuant to CPLR 3211 (a) (7), "the Court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference" (EBC 1, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). The Court's "sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Polonetsky v Better Homes Depot, Inc., 97 NY2d 46, 54 [2001] [internal quotations omitted]). The test is whether the plaintiff "has a cause of action, not whether he has stated one" (Leon v Martinez, 84 NY2d 83, 88 [1994]; see also Matter of Niagara Mohawk Power Corp. v State of New York, 300 AD2d 949, 954 [3d Dept 2002]). However, the Court need not "accept as true legal conclusions or factual allegations that [*3]are either inherently incredible or flatly contradicted by documentary evidence" (1455 Washington Ave. Assoc. v Rose & Kiernan, 260 AD2d 770, 771 [3d Dept 1999] [internal citations omitted]).

Finally, dismissal is warranted under CPLR 3211 (a) (5) where the movant establishes that a cause of action may not be maintained due to the expiration of the statute of limitations.

UHY, LLP

UHY is a certified public accounting ("CPA") firm that was retained to provide independent auditing services to the Trusts. WCB regulations require GSITS to annually submit an audited financial statement prepared in accordance with generally accepted accounting principles and certified by an independent CPA (12 NYCRR § 317.19). The WCB alleges that UHY prepared audited financial statements for fiscal years 2002 through 2006 for all Trusts and audited financial statements for fiscal year 2007 for NYSCT.^[FN2]

The complaint explains that the most significant item on the Trusts' financial statements were estimates of future claims liabilities, also known as loss reserves. The WCB alleges that UHY knew that the Trusts' future claims liabilities posed significant risks to their financial viability. Building upon the allegation that the Trusts' actuary, SGRisk, consistently and substantially underestimated these future claims liabilities, the WCB asserts that UHY failed to implement proper audit procedures to detect these material misstatements, including the use of actual experience data and review of independent analyses of loss reserves. The WCB further alleges that UHY had actual knowledge that SGRisk knowingly and consistently underestimated future claims liabilities. Additionally, it is alleged that "once actual claims liability could no longer be suppressed by SGSRisk's inappropriate methodologies, UHY implemented new accounting procedures designed to artificially inflate the Trusts' reported funding levels."

The WCB contends that UHY allowed its audit approach to be influenced by other considerations, including its professional relationship with CRM and SGRisk and its desire to

conceal CRM's mismanagement of the Trusts so as to continue collecting auditing fees. Thus, the WCB alleges that UHY knowingly manipulated its audit reports, intentionally misstated the Trusts' financial condition, knowingly participated in and facilitated CRM's submission of inaccurate financial statements and failed to implement proper audit procedures — all of which allegedly contributed to the substantial accumulated deficits of the Trusts and their underfunded status.

Five causes of action are asserted against UHY. First, plaintiff alleges that UHY breached its fiduciary duties to the Trusts by consistently concealing the Trusts' true financial condition and by failing to properly audit and test the Trusts' future claims liabilities and other liabilities and assets, despite actual knowledge that SGRisk knowingly and consistently underestimated the Trusts' future claims liabilities. Second, the WCB claims that UHY breached its contractual agreement to audit by failing to originate, follow and/or consistently apply generally accepted accounting and auditing principles, failing or refusing to accurately analyze the Trusts' financial conditions, and by neglecting or refusing to identify the dangers posed by the Trusts' liabilities. The aiding and abetting cause of action alleges that UHY aided and abetted [*4]CRM, the trustees and SGRisk in breaching their fiduciary duties to the Trusts through its delivery of inaccurate audit reports and its continual failure to identify the severity and danger posed by the Trusts' true financial condition. The cause of action for unjust enrichment alleges that UHY failed to perform some of the services for which it was paid and failed to provide other services in a competent fashion. Finally, the WCB alleges that UHY engaged in fraud by, among other things, intentionally misrepresenting the financial conditions of the Trusts.

In moving for dismissal of the complaint, UHY contends that all of the causes of action alleged against it are, in fact, a single claim of accounting malpractice that is untimely under three-year limitations period of CPLR 214 (6). UHY further argues that plaintiff's complaint fails to state a viable cause of action.

A.Breach of Contract

The Court begins with UHY's contention that the breach of contract claim is time barred. The statute of limitations for a breach of contract claim generally is six years (CPLR 213 [2]). Under New York law, "a breach of contract cause of action accrues at the time of the breach"(Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 402 [1993];see CPLR 203 [a]). The date of the breach is controlling even where damages from the breach are not sustained until a later date and the injured party is "ignorant of the existence of the wrong or injury" (Ely-Cruikshank, 81 NY2d at 402-403 [internal quotation marks omitted]).

Notwithstanding the foregoing general principles, "[a] cause of action charging that [an accounting] professional failed to perform services with due care and in accordance with the recognized and accepted practices of the profession is governed by the three-year Statute of Limitations applicable to negligence actions" (Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994]; see CPLR 214 [6]). Thus, the three-year statute of limitations of CPLR 214 (6) applies to claims that "arise out of the accounting services provided by the defendant pursuant to a contract . . . , and out of the accountant-client relationship which resulted therefrom" (Harris v Kahn, Hoffman, Nonenmacher, & Hochman, LLP, 59 AD3d 390, 391 [2d Dept 2009]; see Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co. Inc.], 3 NY3d 538, 542 [2004]). This is true even where the claimed breach of contract is based upon an express contractual promise, so long as the promise is of the sort that the professional would be expected to accomplish using due care even in the absence of a specific contractual provision (Kliment, 3 NY3d at 542; see Winegrad v Jacobs, 171 AD2d 525, 525 [1st Dept 1991]). Generally, "the [malpractice] claim accrues upon the client's receipt of the accountant's work product" (Ackerman, 84 NY2d at 541), but the accrual date is subject to tolling under the continuous representation doctrine (Giarratano v Silver, 46 AD3d 1053, 1055 [2d Dept 2007]).

The WCB's complaint alleges that UHY breached its contractual agreement to perform auditing services for the Trusts "by failing to originate, follow, and/or consistently apply generally accepted accounting principles and generally accepted auditing standards in its analysis of the Trusts' reserve liabilities and financial condition", "by failing or refusing to offer an accurate analysis of the Trusts' financial conditions" and "by failing or refusing to identify the dangers the Trusts' liabilities posed to their solvency" (Complaint ¶¶ 243-245). Building on these general allegations, the complaint specifically alleges: (a) violations of auditing standards with respect to improper reliance upon data and estimates supplied by third-parties, including actuaries; (b) the failure to adjust auditing procedures over time after SGRisk's actuarial [*5]estimates proved inaccurate; (c) the use of testing and accounting procedures designed to artificially inflate the Trusts' funding levels; (d) a failure to consider independent reports of the Trusts' loss reserves in auditing the Trusts; and (e) inadequate audit procedures (see Complaint ¶¶ 163-171).

These alleged breaches of contract all arise out of the accountant-client relationship and all claim a failure on the part of UHY to exercise due care and to render accounting and auditing services in accordance with the accepted standards of the profession. As such, they are governed by the three-year limitations period of CPLR 214 (6) (see Kliment, 3 NY3d at 542; Jacobs, 171 AD2d at 525).

In reaching this conclusion, the Court necessarily rejects plaintiff's reliance upon American Mfrs. Mut. Ins. Co. v Payton Lane Nursing Home, Inc. (2010 US Dist LEXIS 15269 [EDNY 2010]), which holds that "Kliment does not prohibit an injured party from bringing a breach of contract claim against an architect or other professional and no subsequent case has so held." The issue is not whether the WCB can proceed against UHY under a contractual theory;

rather, the issue is determination of the statute of limitations applicable to such a claim. Kliment plainly holds that regardless of theory upon which plaintiff's cause of action is pleaded, a challenge to the auditing services rendered by an accountant or a claim that such services were not rendered in accordance with the relevant professional standards is "essentially" a malpractice claim that falls within CPLR 214 (6) (see Kiment, 3 NY3d at 542).

With regard to accrual, UHY's issuance of its June 20, 2007 report to PETNY represents the last work product delivered to the Trusts. This date is more than three years prior to the July 8, 2011 commencement of this action. However, the WCB argues that the cause of action did not accrue until December 18, 2009, when it "received an independent forensic accounting that it had commissioned in order to obtain a detailed breakdown of HITNY's deficit and the actions and inactions of several parties, including defendants, which led to HITNY's deficit" (Complaint ¶ 62). In support of its argument that, "where damages are an essential element of a cause of action, a plaintiff's cause of action will not accrue until has knowledge of those damages and can allege those damages in its complaint" (Memorandum of Law in Opposition to UHY's Motion to Dismiss, at 6-7), the WCB relies upon two Appellate Division decisions of fairly recent vintage: Inter-Community Mem. Hosp. of Newfane, Inc. v The Hamilton Wharton Group, Inc. (93 AD3d 1176 [4th Dept 2012]) and State of NY, Workers' Compensation Bd. v A & T Healthcare, LLC (85 AD3d 1436 [3d Dept 2011]).

In Inter-Community, former members of a GSIT sued to recover damages for, among other things, assessments that had been levied against them on account of the GSIT's accumulated financial deficit. In reversing Supreme Court's dismissal of the breach of contract claims as time-barred, the Fourth Department concluded that, despite the plaintiffs' withdrawal from active participation in the subject trust in 2001, their joint and several liability for deficits continued under the operative trust documents. The Court further held that the statute of limitations ran anew for each alleged breach, and the record in that action did not disclose the "precise nature and timing" of the alleged breaches so as to conclusively defeat plaintiffs' contractual cause of action. Finally, the Fourth Department held that as damages are an essential component of a breach of contract claim and the plaintiffs could not allege damages for the pro rata deficit assessments until those assessments were actually levied against them, plaintiffs had [*6]six years from the date of the levy in which to commence suit.

A & T Healthcare, a decision of the Appellate Division. Third Department, concerned an action by the WCB to collect assessments from former GIST members. In rejecting defendants' statute of limitations defense, the Third Department held that the WCB's cause of action for breach of contract accrued when the former trust members refused to pay the assessments in accordance with their obligation under the operative trust agreement (83 AD3d at 1437-1438). In so doing, the Court rejected defendants' argument that the WCB's cause of action accrued when it was aware of deficits in the trust and could have levied against current and former trust members (id.).

Both Inter-Community and A & T Healthcare are distinguishable from the present action insofar as they pertained to an obligation by a present or former GSIT member to pay assessments levied pursuant to an indemnity agreement or other governing documents of a GSIT. In A & T Healthcare, which the Fourth Department cited and relied upon in Inter-Community, the Third Department properly held that a GSIT member does not breach its payment obligations under a trust/indemnity agreement until it fails to pay an assessment required thereunder (83 AD3d at 1437-1438). Here, the claimed breaches do not arise out of a trust member's continuing obligation to pay assessments, but rather out of UHY's alleged breaches of its contractual duties in the course of rendering accounting and auditing services — a claim plainly sounding in professional malpractice.

To the extent that the WCB reads these cases, particularly Inter-Community, as holding that the accrual of a cause of action sounding in professional negligence is tolled until the plaintiff has knowledge of its damages, the Court must reject this reading as inconsistent with controlling precedent of the New York State Court of Appeals. Settled law hold that an accounting malpractice claim

accrues upon the client's receipt of the accountant's work product since this is the point that a client reasonably relies on the accountant's skill and advice and, as a consequence of such reliance, can become liable for tax deficiencies. This is the time when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court (Ackerman, 84 NY2d at 541).

Indeed, in Ackerman, the Court of Appeals rejected a discovery-based rule that would have tolled the statute of limitations until the accounting client receives a notice of tax deficiency, reasoning that "to base a limitations period on the potentiality of [a notice of tax deficiency] defies the essential premise of temporal finality embodied in Statutes of Limitation" (id. at 542). The Court of Appeals also emphasized the "utter lack of predictability" that would result from departing from "traditional principles governing negligence actions[, which] instruct that plaintiff was injured, and any claim accrued upon performance of the professional service" (id. at 542-543). A similar lack of predictability and temporal finality would be associated with measuring accrual from receipt of a forensic audit report.

Accordingly, except to the limited extent expressly indicated below in connection with plaintiff's quasi-contract claim, the cause of action for breach of contract must be dismissed as time-barred.

[*7]B.Breach of Fiduciary Duty

"New York law does not provide a single statute of limitations for breach of fiduciary duty claims. Rather, the choice of the applicable limitations period depends on the substantive remedy that the plaintiff seeks. Where the remedy sought is purely monetary in nature, courts construe the suit as alleging injuries to property' within the meaning of CPLR 214 (4), which has a three-year limitations period. Where, however, the relief sought is equitable in nature, the six-year limitations period of CPLR 213 (1) applies" (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139-140 [2009]). And where the claimed breaches of fiduciary duty "arise out of the accounting services provided by the defendant pursuant to a contract . . . , and out of the accountant-client relationship which resulted therefrom", the claim is treated as one for professional malpractice and the three-year statute of limitations of CPLR 214 (6) applies (Harris, 59 AD3d at 391; see Kliment, 3 NY3d at 542).

The gravamen of plaintiff's breach of fiduciary duty claim is that UHY "failed to properly audit and test the Trusts' future claims liabilities and other liabilities and assets" and "fail[ed] to properly state the Trusts' true financial condition" (Complaint ¶¶ 208-209). As with the cause of action for breach of contract, these allegations are essentially allegations of accounting malpractice: "a failure to exercise due care and . . . a material deviation from the recognized and accepted professional standards for accountants and auditors" (Cumis Ins. Socy. v Tooke, 293 AD2d 794, 797 [3d Dept 2002]).

In any event, even if the claim for breach of fiduciary duty were timely, it would nonetheless be subject to dismissal for failure to state a cause of action. Settled principles of New York law hold the duty owed by an accountant to a client generally is not fiduciary in nature (Bitter v. Renzo, 101 AD3d 465 [1st Dept 2012]; Able Energy, Inc. v Marcum & Kliegman LLP, 69 AD3d 443, 444 [1st Dept 2010]; Friedman v Anderson, 23 AD3d 163, 166 [1st Dept 2005]; DG Liquidation, Inc. v Anchin, Block & Anchin, LLP, 300 AD2d 70, 70-71 [1st Dept 2002]). Moreover, plaintiff has not shown that this case falls into the highly circumscribed circumstances in which an accountant may owe fiduciary duties to a client (see e.g. Lavin v Kaufman, Greenhut, Lebowitz & Forman, 226 AD2d 107, 109 [1st Dept 1996] [discretionary investment authority]; Kanev v Turk, 187 AD2d 395, 395 [1st Dept 1992] [advice regarding the making of an unsecured loan]). Indeed, UHY's role as an independent public accountant serving an outside auditing function fundamentally is inconsistent with plaintiff's claim that UHY stood in a fiduciary relationship with its Trust clients.

Accordingly, the cause of action for breach of fiduciary duty is dismissed.

C.Aiding and Abetting

Similar considerations compel the dismissal of the cause of action for aiding and abetting a breach of fiduciary duty. This cause of action alleges that UHY aided and abetted CRM, the trustees and SGRisk in breaching their fiduciary duties to the Trusts through its "continued failure to accurately identify the severity and danger posed by the Trusts' true financial condition" (Complaint ¶¶ 268, 271). The "substantial assistance" allegedly provided by UHY arises directly out of the accounting services rendered to the Trusts and is premised upon the accuracy of the independent audit reports delivered to the Trusts. As such, this cause of action also is time-barred under CPLR 214 (6) (see Buchwald v Renco Group, Inc. [In re Magnesium Corp. of Am.]), 399 BR 722, 747 [SDNY 2009] ["To the extent, if any, to which aiding and abetting . . . is [*8]actionable, when that is done by reason of nothing more than providing the services that [accountants] provide, it is not unlike malpractice . . . "]). Accordingly, this claim is barred by the three-year limitations period of CPLR 214 (6).^[FN3]

D.Fraud

The cause of action for fraud alleges that "UHY made certain representations of fact to the Trusts, the Trusts' members, and the WCB with the knowledge that such representations were false and/or with the intent to conceal the Trusts' true financial conditions and deficits from the Trusts, the Trusts' members, and the WCB" (Complaint ¶ 291). For the most part, the alleged intentional misrepresentations by UHY pertained to the Trusts' true financial condition and the dangers associated with their underfunded status and accumulating deficits. By reason of UHY's fraudulent misrepresentations and concealment of material information, the WCB seeks to hold UHY responsible for the Trusts' deficits, together with punitive damages.

Where a claim of fraud arises in the context of the professional relationship between an accountant and a client, "a separate cause of action for fraud may be established where exposure to liability is not based on errors of professional judgment, but is predicated on proof of the commission of an intentional tort" (LaBrake v Enzien, 167 AD2d 709, 711 [3d Dept 1990]; see

White of Lake George v Bell, 251 AD2d 777, 778 [3d Dept 1998], appeal dismissed 92 NY2d 947). However, "[i]n addition to establishing each element of fraud, plaintiff has the burden of proving that the alleged fraud caused additional damages, separate and distinct from those generated by the alleged malpractice'" (Kaiser v Van Houten, 12 AD3d 1012, 1014 [3d Dept 2004], quoting White of Lake George, 251 AD2d at 778).

Accordingly, a claim of fraud alleged in connection with the rendition of professional services only is sustainable where the alleged fraud is independent of any obligation on the part of the professional to render services with due care and results in damages in addition to those recoverable in a malpractice action alleging a lack of due care (LaBrake, 167 AD2d at 711; White of Lake George, 251 AD2d at 778; Kaiser, 12 AD3d at 1014; see RGH Liquidating Trust v Deloitte & Touche LLP, 47AD3d 516, 517 [1st Dept 2008], lv dismissed 11 NY3d 804; Ruggiero v Powers, 284 AD2d 593, 595 [3d Dept 2001]; see also Daniels v Turco, 84 AD3d 858, 859 [2d Dept 2011]; Mecca v Shang, 258 AD2d 569, 570 [2d Dept 1999]; Sabo v Alan B. Brill, P.C., 25 AD3d 420, 421 [1st Dept 2006]; Rochester Fund Muns. v Amsterdam Mun. Leasing Corp., 296 AD2d 785, 788 [3d Dept 2002]). These cases recognize that a party cannot circumvent the limitations period applicable to a claim of professional malpractice by recasting their claims as ones for fraud or other causes of action with potentially lengthier periods in which to commence suit (see Abramo v Teal, Becker & Chiaramonte, CPAs, P.C., 713 F Supp 2d 96, 108-109 [NDNY 2010]). [*9]

Applying these principles, the Court concludes that plaintiff's claim of actual fraud cannot be sustained with respect to UHY's alleged fraudulent misrepresentation of the Trusts' financial conditions set forth in its annual audit reports (see Complaint ¶¶ 292, 294). This alleged fraud cannot be said to be independent of UHY's professional obligation to render accounting and auditing services with due care and in accordance with relevant professional standards. Further, any damages flowing from misrepresentations set forth in UHY's audit reports are not separate and distinct from those occasioned by UHY's alleged failure to originate, follow and/or consistently apply generally accepted accounting and auditing principles and to accurately analyze the Trusts' financial conditions and identify the dangers posed by future claims liabilities.

Moreover, contrary to the WCB's contention, the fact that it has refrained from alleging an obviously untimely cause of action for accounting malpractice is of no moment in the foregoing analysis. "To say that the complaint is framed in fraud and not upon [professional malpractice] may be true in theory, but in applying the Statute of Limitations we look for the reality, and the essence of the action and not its mere name. Whatever we may call this action, it is, so far as the Statute of Limitations is concerned, an action [alleging professional negligence] and within the [three]-year statute" (Brick v Cohn-Hall-Marx Co., 276 NY 259, 264 [1937]; Walter v Castrataro, 94 AD3d 872, 873 [2d Dept 2012] ["The complaint is nothing more than a rephrasing of the claim of malpractice . . . ." (internal quotation marks omitted)]; Scott v Fields, 85 AD3d 756, 758 [2d Dept 2011] [" Since, in reality, the plaintiff's claims . . . allege professional negligence, the fraud cause of action is subject to a three-year statute of limitations applicable to legal malpractice."]).

However, in addition to challenging UHY's professional work product, plaintiff's complaint also can be read to allege a second theory of fraud: that UHY fraudulently misrepresented to the Trusts that "it would accurately identify, and accurately disclose any changes in, the Trusts' financial statuses, including the danger of incurring operating deficits" (Complaint ¶ 295). Such an allegation is not merely one of professional malpractice or the associated failure of a professional to disclose its prior malpractice. Rather, the gravamen of this allegation, when read in the context of the entire complaint and the papers filed by the WCB in opposition to the instant motion, is that UHY "perpetrated a fraud on [the Trusts] from the time [it was] retained to provide accounting services, in failing to disclose [its] concern with protecting the interests of another entity, namely, [CRM]" (Mitschele v Schultz, 36 AD3d 249, 255 [1st Dept 2006]).

As this theory of actual fraud rests principally on misrepresentations that UHY would provide independent and disinterested audits of the Trusts' financial condition, the alleged improprieties in the audit reports merely represent the means by which the alleged fraud was perpetrated (id.). "Since [this branch of] plaintiff's fraud cause of action is not merely a malpractice claim with a claim for concealment of malpractice superimposed on it, the parallel nature of the damages is not determinative of whether the fraud claim is governed by [CPLR 214 (6)]" (id.). And since such a claim is not premised solely upon a failure to exercise due care or errors in professional judgment, but is also predicated on allegations of the commission of an intentional tort, application of the fraud statute of limitations does not run afoul of the Legislature's intent in adopting CPLR 214 (6) (id.).

The Court further rejects UHY's contentions that the complaint fails to properly plead a [*10]cause of action for fraud and that such a claim conclusively is defeated by documentary evidence. The fact that the vast majority of the factual allegations against UHY are made "upon information and belief" does not compel dismissal of the cause of action. Allegations made upon information and belief "are to be considered true for the purposes of a motion to dismiss pursuant to CPLR 3211(a)(7)" (Roldan v Allstate Ins. Co., 149 AD2d 20, 40, [2d Dept 1989] [citations omitted]). Additionally, the allegations of the complaint, taken in a light most favorable to plaintiff, suffice to permit an inference of fraud (see Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492 [2008]), and the complaint is otherwise sufficient to put UHY on notice of the basis of the fraud claim (Union State Bank v Weiss, 65 AD3d 584, 585 [1st Dept 2009]; see CPLR 3016 [b]).

Finally, the disclaimer included by UHY in its final audit reports for the eight Trusts does not serve to negate an inference of scienter as a matter of law. On a motion to dismiss, the Court must give plaintiff the benefit of all reasonable inferences, and lack of scienter is not the only reasonable explanation for UHY's decision to include disclaimers in its final audit reports.

Of course, the WCB's allegations of fraud are just that: mere allegations. And virtually all of these allegations rest solely upon information and belief and are supported by only limited evidentiary facts. Nonetheless, liberally construing the complaint and giving the WCB the benefit of all reasonable inferences, the branch of the motion seeking dismissal of the fraud claim must be denied in accordance with the foregoing.

E.Unjust Enrichment

Finally, the cause of action for unjust enrichment is premised upon allegations that "UHY did not perform some of the services for which it was paid" and that "of the services that UHY performed and for which it was paid, it did not perform those services in a competent fashion" (Complaint ¶¶ 312-313). On the basis of the foregoing allegations, the WCB seeks recovery of the professional fees paid to UHY in an amount believed to be in excess of $1.3 million.

The latter branch of the unjust enrichment claim, which takes issue with the competency of the professional services rendered by UHY, sounds in professional malpractice and, therefore, is barred by CPLR 214 (6). But insofar as the WCB maintains that UHY failed to perform certain of the accounting services for which it was paid, the claim is not an action for "malpractice" within the meaning of CPLR 214 (6) (Natural Organics, Inc. v Anderson Kill & Olick, P.C., 67 AD3d 541, 542 [1st Dept 2009]; Henry v Brenner, 271 AD2d 647, 648 [2d Dept 2000]). However, given that there is no dispute as to the existence of a binding and enforceable contractual arrangement between the Trusts and UHY, the cause of action seeking recovery in quasi-contract must be dismissed (Kosowsky v Willard Mtn., Inc., 90 AD3d 1127, 1131 [3d Dept 2011]), and the allegations of plaintiff's complaint appearing under the rubric of unjust enrichment shall be deemed to be part of its claim for express breach of contract (Polonetsky, 97 NY2d at 54).

Accordingly, under the six-year statute of limitations applicable to breach of contract actions, the WCB may pursue its claim that "UHY did not perform some of the services for which it was paid" with respect to the period on and after July 8, 2005 (CPLR 213 [2]).

SGRisk

Pursuant to 12 NYCRR § 317.19, GSITs are required to submit to the WCB an annual actuarial report setting forth an estimate of future claims liabilities. These reports allow for the [*11]retrospective assessment of the adequacy of prior member assessments and for the setting of appropriate contribution rates going forward. Additionally, the reports are said to facilitate the WCB's regulatory oversight over GSITs. The complaint alleges that CRM retained SGRisk to provide actuarial services to the Trust, allegedly at the urging of UHY, and that SGRisk prepared independent actuarial reports for the Trusts for the fiscal years 2000 through 2007.

As discussed previously, the WCB alleges that SGRisk was an intentional participant in a scheme whereby the Trusts were deliberately underfunded while being made to appear financially healthy. In manipulating its actuarial estimates, SGRisk allegedly used inappropriate loss development factors. The complaint further alleges that SGRisk was aware its estimates were incorrect because it could have compared its prior estimates to the actual losses incurred by the Trusts and to the estimates of other independent actuaries. Relatedly, the complaint alleges that SGRisk failed to disclose to its clients or the WCB the estimates of other actuaries which identified significantly greater future claims liabilities. The WCB further complains that SGRisk failed to perform any testing of the data and information supplied by CRM, despite its knowledge of CRM's financial incentives to keep member contributions low.

The complaint alleges five causes of action against SGRisk. First, plaintiff claims that SGRisk breached its fiduciary duties to the Trusts by "consistently failing to provide accurate estimates of future claims liabilities and loss reserves" and by "knowingly and consistently underestimat[ing] the Trusts' future claims liabilities and necessary reserves" (¶¶ 188-189). Second, the WCB alleges that SGRisk breached its contractual agreement to provide actuarial services "by failing to originate, follow, and/or consistently apply actuarial standards of practice in its analysis of the Trusts' future claims liabilities", "by failing or refusing to offer an accurate analysis of the Trusts' future claims liabilities" and "by failing or refusing to identify the dangers the Trusts' future claims liabilities posed to their solvency" (¶¶ 224-226). The aiding and abetting cause of action alleges that SGRisk aided and abetted CRM, the trustees and UHY in breaching their fiduciary duties to the Trusts through its knowing and continued failure to accurately identify the severity and danger posed by the Trusts' true future claims liabilities (¶¶ 254-258). The cause of action for unjust enrichment asserts that SGRisk failed to perform some of the services for which it was engaged and failed to render other services in a competent fashion (¶¶ 304-305). Finally, the WCB alleges that SGRisk engaged in intentional fraud (¶¶ 279-297).

SGRisk moves to dismiss all of the causes of action alleged against it, arguing that "[t]he allegations of the complaint boil down to a claim that SGRisk's estimates of the Trusts' loss reserves were too low [and a]s such, the complaint is a professional negligence claim that is barred by [the statute of limitations], and . . . may not be asserted against an actuarial firm" (SGSRisk's Memorandum of Law, at 3-4).

A.Breach of Fiduciary Duty

The Court begins with the issue of timeliness. A claim for breach of fiduciary duty that seeks monetary relief generally is construed "as alleging injuries to property' within the meaning of CPLR 214 (4), which has a three-year limitations period" (IDT, 12 NY3d at 139-140).^[FN4] In [*12]seeking to obtain the benefit of a six-year limitations period, the WCB argues that its claim for breach of fiduciary duty is grounded upon essential allegations of actual fraud (see Kaufman, 307 AD2d at 119). In response, SGRisk maintains that the complaint fails to allege a viable claim of fraud with the requisite particularity.

Insofar as the breach of fiduciary duty claim is grounded upon allegations that SGRisk made mere errors of judgment or methodology or failed to exercise due care in estimating the Trusts' future claims liabilities, plaintiff's allegations of fraud are merely incidental and not essential. As such, the cause of action is subject to a three-year limitations period that accrued no later than April 18, 2008, the last date upon which SGRisk rendered actuarial services to or on behalf of the Trusts. As this is more than three years prior to the commencement of this action, these alleged breaches of fiduciary duty are time-barred.

However, in addition to challenging SGRisk's work product, a portion of the breach of duty claim is founded upon allegations that SGRisk knowingly provided false actuarial estimates. This sounds in actual fraud and, therefore is governed by the six-year statute of limitations (see Carbon Capital Mgt., LLC v American Express Co., 88 AD3d 933, 939 [2d Dept 2011] ["cause of action alleging breach of fiduciary duty was partially barred by the statute of limitations"]). In light of the Court's conclusion below that plaintiff has pleaded a claim of actual fraud, so much of the breach of fiduciary duty claim as is necessarily premised upon allegations of actual fraud has not been shown to be time-barred.

The Court therefore must consider SGRisk's argument that the claim for breach of fiduciary duty fails because an actuary is not a fiduciary under New York law. In EBC I, Inc. v Goldman Sachs & Co. (5 NY3d 11, 19-20 [2005]), the Court of Appeals offered the following guidance in determining the existence of a fiduciary relationship:

A fiduciary relationship exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation. . . . Such a relationship, necessarily fact-specific, is grounded in a higher level of trust than normally present in the marketplace between those involved in arm's length business transactions. . . . Generally, where parties have entered into a contract, courts look to that agreement to discover the nexus of the parties' relationship and the particular contractual expression establishing the parties' interdependency. . . . If the parties do not create their own relationship of higher trust, courts should not ordinarily transport them to the higher realm of relationship and fashion the stricter duty for them. . . . However, it is fundamental that fiduciary liability is not dependent solely upon an agreement or contractual relation between the fiduciary and the beneficiary but results from the relation (internal citations and quotation marks omitted).

In pleading the existence of a fiduciary relationship between SGRisk and the Trusts, the WCB alleges as follows: SGRisk held itself out as being a skilled and competent actuarial and financial consulting firm that adhered to accepted professional standards; SGRisk's services were rendered for the benefit of and on behalf of the Trusts and created a relationship of trust and confidence between and among itself, the Trusts, and the Trusts' members; SGRisk agreed to exercise good faith and undivided loyalty to the Trusts and the Trusts' members in the exercise of [*13]all of its duties; and the discretion and control exercised by SGRisk in the valuing of the Trusts' future claims liabilities gave rise to fiduciary duties running from SGRisk to the Trusts. (Complaint ¶¶ 178-184). On the basis of these allegations, the WCB maintains that SGRisk was obliged to perform its actuarial duties as a fiduciary, with the highest obligations of good faith, loyalty, fair dealing, and good care.

While acknowledging that the Trusts may have relied upon SGRisk's actuarial estimates (or at least upon the range of estimates it provided), SGRisk argues that it lacked the necessary elements of "de facto control and dominance" over its Trust clients (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 11 NY3d 146, 158 [2008], quoting Northeast Gen. Corp. v Wellington Adv., 82 NY2d 158, 173 [1993] [Hancock, J., dissenting] [citations omitted]). SGRisk also relies upon the familiar proposition that pleading an arm's length business relationship is insufficient to sustain a cause of action for breach of fiduciary duty (see e.g. V. Ponte and Sons v American Fibers Intl., 222 AD2d 271, 272 [1st Dept 1995]). Finally, SGRisk attaches some significance to case law holding that actuaries are not fiduciaries under ERISA unless they render investment advice or are given discretionary authority over plan management (see Gerosa v Savasta & Co., 329 F3d 317, 321 [2d Cir. 2003]).

As an initial matter, the Court does not find SGRisk's reliance upon AG Capital to be persuasive, as the alleged fiduciary in that case "never undertook a duty to act for or to give advice for the benefit of another" (11 NY3d at 158). Here, the complaint alleges that SGRisk undertook to give actuarial advice for the benefit of the Trusts and their members. More fundamentally, given SGRisk's specialized expertise in providing actuarial estimates, its role as a quasi-professional advisor, and the trust and confidence allegedly reposed by the Trusts in its actuary's expert judgment and discretion, the present record does not conclusively foreclose the possibility that SGRisk's relationship with the Trusts put it into a position of "superiority and influence" over the Trusts. This is true even if SGRisk's activities were limited, as it contends, to advising the Trusts on actuarially appropriate estimated ranges of future claims liabilities, with the Trusts themselves selecting particular loss reserves from within the ranges advanced by SGRisk. Additionally, the Court is mindful of settled law holding that "[a]scertaining the existence of a fiduciary relationship inevitably requires a fact-specific inquiry" (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 561 [2009] [internal quotation marks omitted]), as well as the absence of any precedent on this point under New York law.

Further, the Court rejects SGRisk's reliance on case law holding that an actuary is not a fiduciary under ERISA. The relevant federal statute, 29 USC § 1002 (21) (A), defines a "fiduciary" as one who exercises any discretionary authority or discretionary control respecting the administration or management of a plan or the disposition or investment of its assets. Clearly, this definition is far more limited than that of a fiduciary under New York law.

Accordingly, liberally construing plaintiff's complaint and giving it the benefit of all reasonable inferences at this early stage of the litigation, SGRisk has failed to establish as a matter of law the absence of a fiduciary relationship with the Trusts Accordingly, the breach of fiduciary duty claim is dismissed only in part in accordance with the foregoing.

B.Breach of Contract

The WCB alleges that SGRisk breached its contract with the Trusts by: "failing to originate, follow, and/or consistently apply actuarial standards of practice in its analysis of the [*14]Trusts' future claims liabilities"; "failing or refusing to offer an accurate analysis of the Trusts' future claims liabilities; and "failing or refusing to identify the dangers the Trusts' future claims liabilities posed to their solvency". In moving for dismissal, SGRisk argues that this claim is merely a time-barred claim of professional negligence that does not lie against an actuary.

In arguing that the breach of contract claim is time barred, SGRisk first contends that since the allegations of the complaint sound in negligence, the claim is subject to CPLR 214 (6). This contention, however, is foreclosed by the decision of the Appellate Division, Second Department in Castle Oil Corp. v Thompson Pension Empl. Plans (299 AD2d 513, 514 [2d Dept 2002]), which holds "that actuaries are not professionals within the meaning of CPLR 214 (6)" (see generally Matter of Patrick BB, 284 AD2d 636, 639 [3d Dept 2001]).^[FN5] Given the inapplicability of CPLR 214 (6), plaintiff's claim for breach of contract cannot be considered a disguised or redundant professional malpractice claim (see Chase Sci. Research v NIA Group, 96 NY2d 20 [2001]; see also Clare Rose, Inc. v Elliot Wise & Co., Inc., 2011 NY Slip Op 31832U at **4 [Sup Ct, Suffolk County 2011]; Certain Underwriters at Lloyd's, London v William M. Mercer, Inc., 7 Misc 3d 1008A at **32 [Sup Ct, NY County 2005]).

The Court further rejects SGRisk's related contention that the complaint fails to state a cause of action for breach of contract. This argument appears to be premised upon the somewhat circular contention that the contract claim actually is one for professional negligence, but such a claim does not lie against an actuary because it is not a professional. However, since an actuary is not considered a professional for purposes of a cause of action alleging "malpractice", the Court must reject SGRisk's characterization of the claim as sounding in professional negligence. And insofar as SGRisk suggests that the cause of action sounds in ordinary negligence, such a conclusion runs counter to settled law holding that a claim of negligence does not lie where the duty allegedly breached arises purely from contract (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]; Sommer v Federal Signal Corp., 79 NY2d 540, 551[1992]). A liberal reading of the WCB's complaint alleges a contractual relationship between and among SGRisk, CRM and the Trusts whereby SGRisk contracted to render actuarial services in accordance with accepted actuarial standards and that it breached that contract by failing to provide actuarial analyses in accordance with such standards.^[FN6] Assuming the truth of such allegations, as the Court must as this early stage of the litigation, plaintiff has alleged a viable claim for breach of contract.

Accordingly, plaintiff may pursue recovery for breaches of contract occurring on and after July 8, 2005, six years prior to the commencement of this action (CPLR 213 [2]).

In reaching this conclusion, the Court necessary rejects plaintiff's contention that its [*15]receipt of forensic accounting reports concerning the Trusts marked the accrual of plaintiff's claim. Insofar as the WCB reads Inter-Community as holding that the accrual of a cause of action for breach of contract is dependent on the plaintiff sustaining actual damages or its knowledge of the same, such a reading runs afoul of settled New York contract law holding that "a breach of contract cause of action accrues at the time of the breach . . . though no damage occurs until later" (Ely-Cruikshank, 81 NY2d at 402 [internal citations and quotation marks omitted]). Likewise, the WCB's argument that it did not know the full nature and extent of defendants' alleged wrongdoing or the resulting damages until it received the forensic audit reports stands on even weaker footing, as "knowledge of the occurrence of the wrong on the part of the plaintiff is not necessary to start the Statute of Limitations running in a contract action" (id. [internal citations and quotations omitted]).^[FN7]

C.Aiding and Abetting

A claim for aiding and abetting a breach of fiduciary duty is subject to the same statute of limitations analysis as a claim for breach of fiduciary duty. For the reasons stated above, the Court concludes that the aiding and abetting claim is time-barred under a three-year statute of limitations insofar as it is grounded upon allegations that SGRisk made mere errors of judgment or methodology or violated accepted actuarial standards in estimating the Trusts' future claims liabilities, but subject to an unexpired six-year limitations period insofar as it is founded upon allegations that SGRisk knowingly provided false actuarial estimates as part of a scheme to defraud.

As to SGRisk's contention that the complaint fails to state a claim for aiding and abetting, the pleading requirements for this cause of action are as follows:

A claim for aiding and abetting a breach of fiduciary duty requires: (1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that plaintiff suffered damage as a result of the breach. . . . Although a plaintiff is not required to allege that the aider and abettor had an intent to harm, there must be an allegation that such defendant had actual knowledge of the breach of duty. Constructive knowledge of the breach of fiduciary duty by another is legally insufficient to impose aiding and abetting liability. . . . A person knowingly participates in a breach of fiduciary duty only when he or she provides "substantial [*16]assistance" to the primary violator. Substantial assistance occurs when a defendant affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur. However, the mere inaction of an alleged aider and abettor constitutes substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff

(Kaufman v Cohen, 307 AD2d 113, 125 [1st Dept 2003] [internal citations omitted]).

SGRisk argues that the complaint fails to distinguish between the various GSITs as to what, when, and how SGRisk assisted CRM in breaching its fiduciary obligations and fails to provide a basis for concluding that SGRisk had actual knowledge of CRM's breaches of duty. The Court does not agree. A fair reading of the complaint discloses allegations of a common scheme or plan between and among SGRisk, CRM and others with respect to all of the GSITs at issue in this action,^[FN8] with the substantial assistance allegedly provided by SGRisk taking the form of intentionally falsified actuarial estimates delivered to the Trusts on an annual basis. Accordingly, the WCB's failure to specifically differentiate between the Trusts or to particularize its allegations with respect to each and every Trust or actuarial report are insufficient to defeat plaintiff's cause of action.^[FN9] Moreover, while the factual allegations of the complaint are somewhat sparse, SGRisk's knowledge of CRM's breaches of fiduciary duty may be inferred from the facts and circumstances alleged in the complaint. Whether the WCB can ultimately prove its sweeping allegations is of no moment at this juncture.

D.Fraud

SGRisk moves to dismiss the fraud claim for failure to state a cause of action.^[FN10] A cause of action for fraud requires plaintiff to allege a misrepresentation or concealment of a material fact, falsity, scienter, justifiable reliance on the deception, and resulting injury (Lusins v Cohen, 49 AD3d 1015, 1017 [3d Dept 2008]). The circumstances constituting the fraud must be stated in detail (CPLR 3016 [b]).

Here, plaintiff alleges that SGRisk intentionally and continually misrepresented the Trusts' future claims liabilities and fraudulently concealed the Trusts' true financial conditions. Plaintiff further alleges that the Trusts and their members relied upon such misrepresentations and sustained damages as a result. While SGRisk contends that the complaint's failure to differentiate the facts and circumstances concerning each individual GSIT is a sufficient basis for [*17]dismissal of this cause of action, the Court concludes, as stated above, that such differentiation is unnecessary given the common scheme or plan alleged in the complaint.

Nor does the Court see merit in SGRisk's contention that the complaint fails to allege when the misrepresentations were made, to whom they were made, who made the misrepresentations and where they were made. The complaint clearly alleges that SGRisk's knowing and intentional misrepresentations and concealment of material information took the form of falsified actuarial estimates that it prepared and delivered to the Trusts on an annual basis over a specified period of years. Given the nature of these allegations, the Court is not persuaded that the complaint must identify the specific inaccuracies associated with each and every actuarial report.

Moreover, while SGRisk emphasizes the conspicuous disclaimer included in its reports, this language merely recognizes the inexactness of the process of actuarial estimation and identifies certain variables that necessarily affect the accuracy of its estimates. Certainly nothing in this disclaimer could have served to put the Trusts on notice that their actuary could have been intentionally manipulating its projections in order to conceal the Trusts' financial condition to assist CRM in perpetrating a fraud, as alleged in plaintiff's complaint. Indeed, the disclaimer itself could be viewed as a representation of SGRisk's belief that its actuarial estimates fall into reasonable and appropriate ranges.

Again, while the factual allegations underlying plaintiff's claim are somewhat sparse, accepting these allegations as true and giving plaintiff the benefit of all reasonable inferences, SGRisk has failed to demonstrate its entitlement to the dismissal of this cause of action on the present record.

E.Unjust Enrichment

Finally, SGRisk argues that the cause of action for unjust enrichment must be dismissed due to the existence of a valid and enforceable contract. As there does not appear to be any dispute as to the existence of a binding and enforceable contractual arrangement between the Trusts and SGRisk covering the instant dispute, the cause of action seeking recovery in quasi-contract must be dismissed (Kosowsky, 90 AD3d at 1128), and the allegations of plaintiff's complaint appearing under the rubric of unjust enrichment shall be deemed to be part of its claim for express breach of contract (Polonetsky, 97 NY2d at 54) and subject to the analysis set forth previously.

CONCLUSION

Accordingly,^[FN11] it is.

ORDERED that defendants' motions are granted in part and denied in part in accordance with the foregoing; and it is further

ORDERED that within thirty days from service of this Decision & Order upon defendants with notice of entry, the parties shall confer regarding the scheduling of a preliminary conference, and plaintiff shall contact Chambers with three proposed dates and times for the holding thereof; and finally it

ORDERED that prior to said preliminary conference, counsel shall consult and confer in [*18]accordance with Rule 8 of the Commercial Division.

This constitutes the Decision and Order of the Court. This Decision and Order is being transmitted to plaintiff's counsel for filing and service. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220, and counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

Dated: Albany, New York

March 1, 2013

Richard M. Platkin

A.J.S.C.

Papers Considered:

Notice of Motion, dated February 14, 2012;

Affirmation of Terry Cummings, Esq., dated February 13, 2012, with attached exhibits 1-7;

Defendant Sgrisk LLC's Memorandum of Law, dated February 14, 2012;

Affidavit of Charles Gruber, sworn to February 13, 2012, with attached exhibits A-BB;

Plaintiff's Memorandum of Law, dated April 18, 2012, with attachments;

Affirmation of Daniel E. Sarzynski, Esq., dated April 18, 2012;

Affidavit of Michael Papa, Esq., sworn to April 16, 2012, with attached exhibits A-C;

Reply Affirmation of Terry Cummings, Esq., dated April 30, 2012, with attached exhibit A;

Reply Memorandum of Law of SGRisk, LLC, dated April 30, 2012;

Notice of Motion, dated February 14, 2012;

Affirmation of John H. Eickemeyer, Esq., dated February 14, 2012, with attached exhibits A-E;

Affidavit of Richard Kotlow, sworn to February 9, 2012, with attached exhibits A-I;

Defendant UHY LLP's Memorandum of Law, dated February 14, 2012;

Plaintiff's Memorandum of Law, dated April 18, 2012, with attachments;

Affirmation of Daniel E. Sarzynski, Esq,. dated April 18, 2012;

Defendant UHY LLP's Reply Memorandum of Law, dated May 3, 2012;

Reply Affirmation of John H. Eickemeyer, Esq., dated May 3, 2012, with attached exhibit A.