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TITLE
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EXTRACTED KEY WORDS
No key words found in document. -------------- This indicates that document is an image. -------------- Images in PDF files often contain text readable by persons but not by scanners. |
66-3004R-200W63
COUNTY CLERK, NEW YORK COUNTY
Application for INDEX NUMBER pursuant to
C.P.L.R.
FEE $35.00
Spaces below to be TYPED or PRINTED by
write in this space
I, d q
Name and address -of ,i>=, .."L:
Attorney for Plaintiff (, . .7
or Petitioner.. J,&* i' \v -.
Teleahone No. / : ,I ,i' !
Name and ac
Attornev for Defendant
B. Application for Index Number filed by:
C. Date of Service of Summons
ed?
YES d NO 0
D. Is a Provisional Remedy being sought in adva
he I-/
Service of this Sum.mons? YESU NO 2=
n
E. Date ~ -;`,,";< `.-- / pT,c"'
1 I
Checked by-
DO NOT WRITE ON LINE
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SUMMONS
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EXTRACTED KEY WORDS
SERVE FAILURE JUDGEMENT RELIEF YORK DAMAGES NAMED DEFENDANT COMPLAINT PLAINTI STARE YDU NOTIEMBER PARK AVENUE NATURE DAMAGES AMOUNTING J-/Y M0NETAL-Y RQ3 NOVAW |
To the above named Defendant(&
,,
&ut UP 1pmlIlJ h. m1lt1mm?b
er the complaint"in this action and to serve a'
of your answer, or, if the complaint
.to serve a notice of appearanc'e,Yan',the plainti
Attorney(s) within 20 days after the
exclusive of th,e day of service (or, within 34 d
after the service is complete if this summons
delivered to you within the Stare of New Ydik);,Jan
case of your failure to appear or answer,
against ydu by default, for the relief' demanded he
Dated, NoTiember B-1984
m.,
Defendant's Address:
"., 345 Park Avenue
New York, New York
Notice: The nature of this action is by-a
qlig&ce for damages amounting to
P q J-/Y) J 0 3 e 3 `7 -
The relief sought is m0netaL-y damage
: `+l?&fBs `L3J-~ rQ3. JT
, ' l.44
U~pon your failure to appear
novAW
19 81.,, .and the co
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PLNTF MEMO OPP MTD
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EXTRACTED KEY WORDS
COUNTY REASON GREENE SUPREME COURT MCLEAN JUDGEMENT OBJECTION COMPLAINT ALLEGATIONS THEREIN MISCONSTRUES PLEADING WHOLLY INAPPROPRIATE JURAT LITIGATION YORK LAW DOCTRINE THERETO BROOME SUPRA REPRESENTATION BERMAN AFFIDAVIT FOREGOING REASONS SET MOTION DISMISS COUNSEL ROBERT ROSEMAN ESQ |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--l----------------l__LI_L__L___I______ d----x
ORYX COMMUNICATIONS, INC., in its own :
capacity and as successor to and
assignee of the rights of Replicon, Inc., :
Plaintiff, :
-against-
PEAT, MARWICK, MITCHELL h CO., a
partnership,
Defendant. :
---------l----_____l_______ ---------------!2x
This Memorandum of Law is submitted
defendant's motion to dismiss the verified
the within action. The facts relied on herein
the Affirmation of Robert A. Roseman dated
(hereinafter referred to as the "Roseman Affirmation"),
affidavit of Thomas Sherwood sworn to on December,
(hereinafter referred to as the "Sherwood
affidavit of Thomas Sherwood sworn to on May 15, 1985
(hereinafter referred to as the "First Sherwood
the affidavit of Professor Norman D. Berman sworn to on May
1985 (hereinafter referred to as the "Berman
not be repeated herein.
ARGUMENT
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ORDER
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EXTRACTED KEY WORDS
MARWICK MITCHELL EDWARD LEHNER MENT CPLR COURT ALLEGATIONS |
,a
* \
? SUPREME COURT : NEW YORK COUNTY .,7
c,+$ 3
SPECIAL TERM PART I
---c--Ic---Ic-Ic---c------------------------ X
ORYX COMMUNICATIONS, INC., in its own
capacity and as successor to and assignee
of the rights of Replicon, Inc.,
Plaintiff,
-against-
PEAT, MARWICK, MITCHELL & CO., a
partnership,
Defendant.
EDWARD H, LEHNER, J.:
Defendant moves pursuant to CPLR 3211 (a) (5)
for an order dismissing the amended complaint,
native, pursuant to CPLR 3211 (c) for summary judgment.
issue has not been joined, the alternative request
"j,%
judgment was not considered. The notice necessary
ment under CPLR 3211 (c) was not given by the court.
By this action plaintiff seeks to recover
allegedly sustained in connection with defendant's
unaudited financial statements on behalf of
in interest, Replicon, Inc. It is alleged that
o
discover a recording error in Replicon's books
earnings to be overstated in a securities
and prospectus. As a
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VERIFIED AMND COMPLAINT
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EXTRACTED KEY WORDS
DEFENDANT REPLICON PLAINTIFF REGISTRATION STATEMENT FINANCIAL STATEMENTS REQUIRED-TO SALE EARNINGS PREPARATION PROFESSIONAL ACCOUNTANTS GOODS AGREEMENT ACCORDANCE PROSPECTUS ORYX COMPLAINT BASIS YORK STANDARDS BOOKS AUDITORS REASON AFORESAID ACCOUNTING PRINCIPLES PURSUANT ACCEPTED ACCOUNTING PRINCIPLES REVENUES GAAP FOREGOING |
I
SUPREME COURT OF THE STATE OF NXW YORK
COUNTY OF NEW YORK
- - - - - - - - - - - - - - - - - - -
ORYX COMMUNICATIONS INC., in i t s own
capacity and as successor to and assignee :
of the rights of Replicon, Inc.,
-against-
PEAT, MARWICK, MITCHELL, & CO.,
a partnership,
Plaintiff, 'by its attorneys, FLADOW, BRICK, PILLAI &
ROSEMAN, ESQS., complaining of the defendant, alleges as follows
1. Plaintiff is a corporation organized and existing
under the laws of the St,ate of Delaware with its principal place
of business at 560 Ninth Street, San Francisco, California, and
is the successor in interest to and assignee of t h e rights of
Replicon, Inc. (hereinafter referred to as "Replicon") , includin
but n o t limited to any causes of action of Replicon set forth
herein.
2.. Defendant is a partnership of Independent Public
Accountants engaged in the practice of accounting, auditing and
management consultancy services wit.h i t s principal place of
business at. 345 Park Avenue, New York, New York.
AS AND FOR A FIRST CAUSE OF ACTION
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6
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SUMMONS
|
EXTRACTED KEY WORDS
DEPONENT SUMMONS DELIVERING SKIN YORK AGE LBS WRAPPER DEPOSITORY CAPACITY SUCCESSOR FAILURE JUDGEMENT RESIDES DELIVERING THEREAT POST OFICE BROADWAY SUITE DWELLING HOUSE-USUAL PLAT TYE STATE OESCRIPTIOM FOIIOWS SEX MOLE FEMALE WHITE SKIN BLACK SKIN YELLOW SKIN |
.- - C 1 98- Summons with Notice, Supreme Court.
INC.. P U B L I S H E R I
Personal or Substituted Servicc. 1-79
YORK . N. Y . 1 0 0 1 3
5uprPmP Maurt ax S M a nf Ppm @Irk
7 0 Ty- fl)/
MUunIy Ilf NEW YORK w w
ORYX L"MUNICATI0NS INC., in its
trial
m capacity and as successor tm
assignee of the rights of R q l i c
ue is
s
against
HdlitP
To the above named Defendant(&
hpyphy mnntanPh to answer the complaint
- of vour answer. or, if the complaint is n'ot served with this summons, to
the Plaintiff's
AttorneyCs) within 20 days after the service of this summons,
days
. after the service is complete if this summons is not personally delivered to
; case of your failure to appear or answer, judgment will be taken against
Dated, N o v a n b e r 23, 1984
Defendant's Address:
' 345 Park.Avenue
Upon your failure to appear, judgment will be
. .
A
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NOTICE & AFFADAVITS
|
EXTRACTED KEY WORDS
PMM COMPILATION ACCOUNTING PLAINTIFF YORK ENGAGEMENT AMENDED COMPLAINT STANDARDS BOOKS REVIEW ALLEGE ATTENTION SALE PEAT MARWICK REPRESENTATIONS MITCHELL REGISTRATION STATEMENT EXHIBIT REPLICON AUDIT EXAMINATION PREPARATION AUDITING STANDARDS CONTROL CONFORMITY RESPONSIBILITY ACCORDANCE OPINION REPORTING |
SUPREME COURT OF THE STATE O F NEW YORK
COUNTY OF NEW YORK
- - - - - - - - - - - - - - - - _ - x
ORYX COMMUNICATIONS, INC.,
Plaintiff,
`against
PEAT, MARWICK, MITCHELL & CO.,
Defendant.
- - - - - - - - - - - - - - - - - - - X
S I R S :
PLEASE TAKE NOTICE that upon the annexed affidavits
of Peter W. L e i g h t and Charles W. Gill and the exhibits
thereto,y- yersigned will move this Court at a Special
deaf _-
+.- at the
Street, New York, New York,
can be heard, tor an order pursuant to CPLR 3211(a)(5),
3211(a)(7) and 3211(c) dismissing the amended complaint
as barred by the statute of limitations and f a i l i n g to state
a cause of action or, in the alternative, granting summary
+.
judgment in favor of the defendant herein, ,;>
.%<
.;. "
. , ",
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MEMO OPP DEF MTD
|
EXTRACTED KEY WORDS
AFFIDAVIT PLAINTIFF CONTRACT ACCOUNTANTS NEGLIGENCE MOTION FINANCIAL STATEMENTS DISMISS ACCORDANCE BREACH DAMAGES ACT MEMORANDUM LAW COMPLAINT FACTS SHERWOOD BERMAN AFFIDAVIT REGULATIONS YORK PREPARING STANDARDS DILIGENCE COURT GAAP REGISTRATION STATEMENT FAILURE REASON ALLEGES |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----ll---l--ll-ll--_--------------------_-----
X
ORYX COMMUNICATIONS, INC., in its own
capacity and as successor to and
assignee of the rights of Replicon, Inc., Index No. 27075/84
Plaintiff, . ;!
. !7
-against-
PEAT, MARWICK, MITCHELL & CO., a
partnership,
.:!;
(+
MEMORANDUM OF LAW
IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS
PRELIMINARY STATEMENT
This Memorandum of Law is submitted in opposition to
plaintiff's motion to dismiss this action on the grounds that
complaint fails to s t a t e a cause of action. The facts in support
of plaintiff's position axe set forth in the affidavits of Thomas
Sherwood sworn to on May 15, 1985 (hereinafter referred to as the
"Sherwood Affidavits") and Norman D. Berman, sworn to on May 15,
1985 (hereinafter referred to as the "Berman Affidavit") and will
not be repeated herein.
ARGUMENT
POINT ONE
THE FIRST AND THIRD CAUSES OF
ACTION SET FORTH IN THE COMPLAINT
ARE GROUNDED IN CONTRACT AND NEGLIGENCE
RESPECTIVELY AND SHOULD NOT BE DISMISSED.
At the outset, it is axiomatic that a motion to dismiss
or for summary judgment must be denied if there are any triable
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9
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GILL AFFADAVIT
|
EXTRACTED KEY WORDS
PMM REPLICON ORYX SHERWOOD BOOKS ACCOUNTING ORIGINAL ENTRY SUBSEQUENT REPRESENTATIONS EXHIBIT SUBSEQUENT EVENTS HERETO OPINION BASIS AUDIT COMPILATION CONSOLIDATED BALANCE SHEET BALANCE SHEET ACCORDANCE REVIEW PROFESSION SCHIFFER SALE PARAGRAPH EARNINGS AUDITING STANDARDS REGISTRATION STATEMENT PROSPECTUS AUDITED FINANCIAL STATEMENTS |
J
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK I
ORYX COMMUNICATIONS, INC.,
Plaintiff,
- against-- : Index No. 27075/84,
PEAT', MARWICK, MITCHELL 6; co., : AFFIDAVIT
Defendant.
CHARLES W. GILL, being duly sworn, deposes and says:
1. I am a Certified Public Accountant duly licensed
to practice i n the State of New York and a partner of Peat,
Marwick, Mitchell & Co. ("PMM"), a nationwide firm of Certified
Public Accountants. I submit this affidavit in support of
PMM's motion to dismiss the complaint against it or, i n the
alternative, for summary judgment.
2. Throughout the period relevant to the allegations I
in the complaint, I was the,Engagement Partner in charge of
P M " s engagements by the plaintiff Oryx Communications, Inc.
("Oryx") and its predecessoi .Replicon, Inc. ("Replicon"). In
i
that capacity I supervised the * " M accountants who rendered
professional services t o Oryx and Replicon. I a l s o consulted
wi,th t h e principals of Oryx and Replicon regarding the services
provided by PMM.
3 . PMM was *irst engagetl.by Replicon in early 1981.
A t that time PMM was approached,by Paul Levine, who later
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DEF REPLY MEMO SUP MTD
|
EXTRACTED KEY WORDS
PMM AMENDED COMPLAINT MOTION PAID DAMAGES COURT DEFENDANT DISMISS SUMMARY JUDGMENT YORK SALARIES IMPROPER LAW MEMORANDUM NEGLIGENCE UNAUDITED COMPILATION EMPLOYEES NEGLIGENT FINANCIAL STATEMENT LIMITATIONS REPRESENTATION CONTINUOUS TREATMENT ORIGINAL COMPLAINT CPLR PLAINTIFF CONCEDES ALLEGATIONS CONTROL SHEET SUBSEQUENT EXCEPTION |
*.-
e
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
ORYX COMMUNICATIONS, INC.,
Plaintiff,
-against- Index No. 27075/84
PEAT, MARWICK, MITCHELL & CO.,
Defendant.
X
REPLY MEMORANDUM IN SUPPORT
OF DEFENDANT'S MOTION TO DISMISS
THE AMENDED COMPLAINT OR, IN THE
ALTERNATIVE, FOR SUMMARY JUDGMENT
This reply memorandum is submitted on behalf of
defendant Peat, Marwick, Mitchell & Co. ("PMM") in further sup-
port of its motion to dismiss the amended complaint or, in the
alternative, f o r summary judgment.
Plaintiff's response to P M " s motion is curious.
First, plaintiff concedes that Count 3 of the three-count
amended complaint ignores the decision of this Court and is im-
proper. Plaintiff agrees that it should be dismissed.
Second, plaintiff does not address, and does not dis-
pute, two principles of law: ( i ) salaries which would have
-2-
been paid to employees whether or not PMM was (as is alleged)
negligent are not damages and may not be recovered, and ( i i )
plaintiff may recover for breach of contract only fees paid PMM
for work it alleges was improperly performed.
Plaintiff's legal response t o these points is
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11
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DEF MEM SUP MTD
|
EXTRACTED KEY WORDS
COMPLAINT ORYX FINANCIAL STATEMENTS REPLICON GILL PROFESSION MOTION SUMMARY JUDGMENT NEGLIGENCE EXHIBIT COURT LAW YORK SUPPORT BOOKS ORYX COMMUNICATIONS NEGLIGENT PROFESSIONAL SERVICES APPLICABLE PROFESSIONAL STANDARDS SUBSEQUENT EVENTS REPRESENTATIONS PUBLIC OFFERING ORIGINAL ENTRY REGISTRATION STATEMENT DEFENDANT CPLR DISMISSING BLAME PMM ACCOUNTANT |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ORYX COMMUNICATIONS, INC.,
Plaintiff,
-against- : Index No. 2 7 0 7 5 / 8 4
PEAT, MARWICK, MITCHELL & CO.,
Defendant.
MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT'S MOTION TO DISMISS
THE COMPLAINT OR, IN THE ALTER-
NATIVE, FOR SUMMARY JUDGMENT
This memorandum is respectfully submitted by defen-
dant Peat, Marwick, Mitchell & Co. ("PMM") in support of its
motion, pursuant t o CPLR §§ 3211(a)(7) and 3211(c), for an
order dismissing t h e complaint for failure to s t a t e a claim or,
. -
I i n the alternative, granting summary judgment in favor of PMM
on a l l claims purportedly asserted in t h e complaint.
PRELIMINARY STATEMENT
The gravamen of t h e complaint is a claim t h a t PMM was
negligent in performing professional services for Oryx and its
predecessor Replicon, Inc. ("Replicon"). In particular, Oryx
blames PMM f o r an error contained in Replicon's unaudited
- 2-
financial statements for the eight months ended March 31, 1981
(hereinafter the "unaudited interim financial statements").
That error arose from Replicon's improper recording of a single
transaction -- a $165,000 sale that should have been reflected
in Replicon's books as having occurred in April 1981 rather
than in March 1981 (Complaint 11 4 ( 2 ) ) . In providing profes-
sional services to Replicon, PMM relied on the express repre-
sentation of Replicon's president that there were "no . . .
[mlaterial transactions that have not been properly recorded"
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DEF MEM SUP MTD
|
EXTRACTED KEY WORDS
FINANCIAL STATEMENTS AMENDED COMPLAINT NEGLIGENCE INTERIM FINANCIAL STATEMENTS ACCOUNTANT PLAINTIFF GILL BOOKS COURT COMPILATION ORYX YORK LIMITATIONS COMPILING DAMAGES REPRESENTATIONS SUMMARY JUDGMENT ORIGINAL ENTRY CPLR ACCEPTED ACCOUNTING PRINCIPLES ORYX COMMUNICATIONS MEMORANDUM ALLEGATIONS PROFESSIONAL STANDARDS GROSS NEGLIGENCE TRANSACTIONS JUSTICE DONTZIN DEFENDANT INACCURATE |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- - - - - I _ _ _ _ _ _ _ _ _ _ _ _ _ _ X
ORYX COMMUNICATIONS, INC.,
Plaint iff ,
-against- Index No. 27075/84
PEAT, MARWICK, MITCHELL & CO.,
MEMORANDUM IN SUPPORT OF DEFENDANT'S
MOTION TO DISMISS THE AMENDED COMPLAINT
OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
This memorandum is submitted on behalf of defendant
Peat, Marwick, Mitchell and Co. ("PMM"), a firm of certified
public accountants, in support of its motion, pursuant to CPLR
§$ 3211(a)(5), 3211(a)(7) and S 3211(c), for an order d i s -
missing the amended complaint as barred by the s t a t u t e of limi-
tations and failing to s t a t e a cause of a c t i o n or, in the
alternative, granting summary judgment in favor of PMM on all
counts of the amended complaint.
- 2-
PRELIMINARY STATEMENT
I
The original complaint in this action was served in
January 1985. It alleged PMM's negligence in compiling
unaudited interim financial statements in 1981. 1
The original complaint asserted four counts of negli-
. gence, labeled: negligence, ''gross" negligence, breach of con-
tract and violation of the federal Securities Act of 1 9 3 3 , 15
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BRENNAN AFFADAVIT
|
EXTRACTED KEY WORDS
FINANCE YORK MANAGEMENT REVENUE BUSINESS GOODS SALE INCOME COST PREPARATION ENTRIES ECONOMICS TAUGHT COURSES STANDARDS INVENTORY EXPENSES TRANSACTIONS EARNINGS OPERATING ACCOUNTING CYCLE PURPOSE ADJUSTING ENTRIES DEPRECIATION APPORTIONING ATTORNEYS GRADUATE SCHOOL ACCOUNTING MEASUREMENT ACCOUNTING PROCEDURES |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
............................................ X
ORYX COMMUNICATIONS, INC., in its own
' capacity and as successor to and
assignee of the rights of Replicon, Inc., Index No. 2707C
Plaintiff, AFFIDAVIT
-against-
!; PEAT,
I! MARWICK, MITCHELL & co., a
!~ partnership,
STATE OF NEW YORK ) : ss.:
COUNTY OF NEW YORK )
I
NORMAN D. B E W , being duly sworn, deposes and says:
1. I am the Director of the Masters Programs in
Accounting at the Graduate School of Business Administration of
New York University. From 1972 to 1975 and from 1980 to the
present, I served and presently serve on the Executive Committec
of the American Accounting Association, Northeast Region. I haT
participated in numerous professional seminars on various
professional topics. From 1978 to 1981, I was the Editor in
Chief of The Accounting Journal which is a publication for
professional and academic accountants. I received a Bachelor 01
Arts degree from Brooklyn College in 1955 and an MBA in Finance
from Columbia University in 1957. I studied economics and
accounting at the London School of Economics from 1963 to 1964.
Ph.D. in Accounting at New York University. From 1973 to the
present, I have taught accounting at the New York University
Graduate School of Business including courses on Management
Accounting, Internal Reporting and Control, Basic Accounting,
Accounting and Control for Non-Profit Organizations. From I
1967 ~
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ANOTHER REPLY MEM SUP MTD
|
EXTRACTED KEY WORDS
PMM AMENDED COMPLAINT MOTION PAID DAMAGES COURT DEFENDANT DISMISS SUMMARY JUDGMENT YORK SALARIES IMPROPER LAW MEMORANDUM NEGLIGENCE UNAUDITED COMPILATION EMPLOYEES NEGLIGENT REPRESENTATION FINANCIAL STATEMENT LIMITATIONS CONTINUOUS TREATMENT CPLR ORIGINAL COMPLAINT PLAINTIFF CONCEDES ALLEGATIONS CONTROL SHEET SUBSEQUENT EXCEPTION |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
ORYX COMMUNICATIONS, INC.,
Plaintiff,
-against- Index No. 27075/84
PEAT, MARWICK, MITCHELL & CO.,
Defendant.
X
REPLY MEMORANDUM IN SUPPORT
OF DEFENDANT'S MOTION TO DISMISS
THE AMENDED COMPLAINT OR, IN THE
ALTERNATIVE, FOR SUMMARY JUDGMENT
This reply memorandum is submitted on behalf of
defendant Peat, Marwick, Mitchell & Co. ("PMM") in further sup-
port of its motion to dismiss the amended complaint or, in t h e
alternative, for summary judgment.
plaintiff's response to PMM'S motion is curious.
First, plaintiff concedes that Count 3 of the three-count
amended complaint ignores the decision of this Court and is im-
proper. Plaintiff agrees t h a t it should be dismissed.
Second, plaintiff does not address, and does not dis-
pute, two principles of law: ( i ) salaries which would have
- 2-
been paid to employees whether or not PMM was (as is alleged)
negligent are not damages and may not be recovered, and ( i i )
plaintiff may recover f o r breach of contract only fees paid PMM
f o r work it alleges was improperly performed.
Plaintiff's legal response to these points is
silence -- its factual response is wholly insufficient. Plain-
t i f f says that salaries would have "either not been paid % the
employee's time would have been spent on other activities on
behalf of plaintiff." Plaintiff says o n l y that it is possible
SNIPPETS:
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COMPLAINT
|
EXTRACTED KEY WORDS
SUM COMMUNICATIONS PEAT MRWICK MITCHELL NEREIN PROSPECTUS PLAINTIFF CFR |
COUNTY OF NEW YORK
-------------1---- - x
OR& COMMUNICATIONS INC.-, in its own
capacity and as successor to and assignee :
of the rights of Keplicon, Inc., :-
Plaintiff, :
-against- . i
PEAT, MRWICK, MITCHELL, f CO.,
a partnership, :
Defendant.
----.---3-------------- ,a
Piaintiff, by its attorneys, RADOW,
ROSEMAN, GQS., complaining of the aefendants
i. Plaintiff is a corporation organized
under the laws of the State of Delaware with its principal
of business at 56i, flinth Street, San Francisco,
,, is the successor: in interest to and assignee
Replicon, Inc. (hereinafter referred to as
but not limited to any causes of action of
nerein.
2. Defendant is a partnership of
Accountants engaged in the practice of accounting,
management consuitancy services with its principal
business at 345 Park Avenue, New York, New York.
AS AND FOR A FIRST CMSE OF ACTION
In or about Spring, 1981, Replicon
3.
entered into an agreement pursuant to wnich
perform accounting services for Keplicon
limited to the preparation of an Unaudited
+ T
a ,of Earnings of rieplicon anb su&idiary for
,biarch 31, 1980 and March 31, 1581 (hereinafter
I "Replicon Earnings Statement'j. As part of said
defendant represented to Replicon that it and
.Independent Certified Pubiic Accountants and
,whom possessed the skill, ability, and experience
accountants and auditors, wno, in accoraance
Accepted Accounting Principals, were specially
prepare and furnish, inter alia, financial
4. Thereafter, defendant prepared
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AFFIRMATION & AFFADAVITS
|
EXTRACTED KEY WORDS
AFFIDAVIT ORYX MOTION COMPLAINT EXHIBIT YORK COURT DISMISS SWORN ACCOUNTING PURSUANT ACCOUNTANTS FINANCIAL STATEMENTS REPLICON PLAINTIFF SUBSEQUENT STANDARDS GILL AFFIDAVIT CONNECTION REGISTRATION STATEMENT OPPOSITION ANNEXED THERETO ALLEGATIONS SHERWOOD AFFIDAVIT GAAP PREPARATION CPLR RULE PROSPECTUS ORYX SHAREHOLDERS ACTION |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ORYX COMMUNICATIONS, INC., in its own
capacity and as successor to and
assignee of the rights of Replicon, Inc. , : lrIndex No. 27075/
ROBERT A. ROSEMAN affirms under the penalties of
I ,i "perjury, pursuant to CPLR Rule 2106, that the following is true
1. I am an attorney d u l y admitted to practice in
~" State of New York and a member of the l a w firm of Radow, Brick,
1 1 Pillai & Roseman, attorneys for plaintiff Oryx Communications,
~~
~' i~
~ # ' ~
Inc. (hereinafter referred to as "Oryx") herein. I have know-
1 ,~ ledge of the facts set forth herein. I submit this affirmation
in opposition to defendant's motion to dismiss (the second moti
~
, l1 I
'~ to dismiss brought by defendant in this action) and in answer t
I the affidavit.s
of Charles W. G i l l , sworn to on November 15,
with exhibits annexed thereto (hereinafter referred to as the
1,
" G i l l Affidavit") and Peter W. Leight, Esq. sworn to on Novembe
8 ~ 8
I
15, 1985, with exhibits annexed thereto (hereinafter referred t
~
i ; as the "Leight Affidavit" I. --
1 !I Background
mi
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ANOTHER VER AMN COMPLAINT
|
EXTRACTED KEY WORDS
DEFENDANT REPLICON YORK COMPLAINT ORYX ACCOUNTANTS EARNINGS ATTORNEYS SALE REGISTRATION STATEMENT ACCOUNTING FINANCIAL STATEMENTS PILLAI AGREEMENT GOODS PROFESSIONAL ACCOUNTANTS PROSPECTUS COUNTY ACCOUNTING SERVICES NET SALES STANDARDS ACCORDANCE AFORESAID ACCEPTED ACCOUNTING PRINCIPLES FOREGOING SUPREME COURT SUCCESSOR PARTNERSHIP SHAREHOLDERS ACTION |
I ,I 11 SUPREME COURT OF THE STATE OF NEW YORK
i '1 1 COUNTY OF NFM YORK
.
:. '
- - - - - - - - -
-
il ~~ ORYX COMMUNICATIONS INC., in its own
!/capacity
and as successor to
I of the rights of Replicon, Inc.,
1 '
1 ,'
VERIFIED AMEND
' 1, I
COMPLAINT
11 I!
I1
-- -
~
'
, F - ,.. -
-
1 8
l 1
;I -against-
1'
E
'# PEAT, MARWICK, MITCHELL, & CO.,
a partnership,
DEC L 7 19'83
: ' COUNTY a * m
4Ra
~ - - - - - - - _ _ _ _ _ _ _ _ _ _ _ _ _ _
X
' I
--- NEW It"oR#.*.--." , " 4-
Plaintiff, by its
ROSEMAN, ESQS., complaining of the
1. Plaintiff is a
under the laws of the State of Delaware
of business at 560 Ninth Street, San
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18
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REPLY MEMO OF PMM
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EXTRACTED KEY WORDS
PMM PLAINTIFF COMPILATION REPRESENTATIONS MISTAKE PAID AFFIDAVIT RESPONSIBILITY YORK DAMAGES PROFESSION AUDIT STANDARDS ACCOUNTANT GILL ACCEPTED ACCOUNTING PRINCIPLES ACCORDANCE GAAP CONFORMITY EXAMINATION AUDITING STANDARDS ACCOUNTING RECORDS TRANSACTIONS REVIEW SERVICES COMPLAINT MANAGEMENT SUPREME COURT ORYX COMMUNICATIONS CHARLES GILL |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- -
l - _ _ _ _ _ l - _ _ _ _ - - - l -X
ORYX COMMUNICATIONS, INC.,
Plaintiff,
-against-
PEAT, MARWICK, MITCHELL & CO.,
Defendant.
_ _ _ _ _ _ - - _ _ _ _ _ - - - -
-X
REPLY MEMORANDUM IN SUPPORT OF PMM'S
MOTION TO DISMISS THE COMPLAINT OR,
IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
This lawsuit is yet another example of a litigious
instinct seeking whom it may devour. Plaintiff claims damages
for a mistake it made itself, and its "damages" are (i) the
costs of another litigation that it defended and won and
(ii) every penny it paid PMM for professional services, the
v a s t bulk of which it is not complaining about.
Plaintiff submits two lengthy affidavits, but the
facts are very simple. PMM assisted plaintiff i n the compila-
tion of a financial statement f o r the eight months ending
March 31, 1981. T h e compilation was unaudited. (PMM actually
performed audits and otht.:: procedures f o r plaintiff f o r dif-
ferent time periods there is no claim as to any
- 2-
other work done by PMM.)l The compilation represented, in
terms of fees charged, 3% ($5,300 of $143,300; see reply affi-
davit of Charles Gill) of the work done by PMM for plaintiff
over a six month period.
A compilation is only that -- putting numbers in a
compiled form. It does not involve verification and it does
not involve checking the client's books (these are audit proce-
dures). This is specifically stated in the American Institute
SNIPPETS:
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20
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ANOTHER NOTICEPF APPEAL
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EXTRACTED KEY WORDS
COURT DISMISS ACTION SET PLAINTIFF PEAT MARWICK MITCHELL COUNTY COMPLAINT REPLEAD CAHILL GORDON REINDEL ATTORNEYS DEFENDANT APPEALS SUPREME COURT PARTIES MOTION FEDERAL SECURITIES LAWS ORYX COMMUNICATIONS APPELLATE COUNSEL RADOW BRICK PILLAI ACCOUNTING REQUIRING THEREIN BASIS L10 BAR |
' ;; ORYX COMMUNICATIONS , INC. ,
~' Plaintiff, Index No. 27075/84
- against -
I
PEAT MARWICK MITCHELL & CO. ,
~
Defendant.
, , X
I,
Please take notice that the above
hereby appeals t o the Appellate Division of the New York Suprem
; ' Court in and for the First Department, from an order enterad i n
the above entitled action in the office of the Clerk of the
County of New York on September 6, 1985, to the extent t h a t sai
,~~~ order requires plaintiff to replead and dismisses a cause of
/~~ i action set forth in the complaint. This appeal is taken from s
!i
I' 1 1
'~ much of said order as requires plaintiff to replead and dismiss
i a cause of action set forth in the complaint.
1,Dated: October 11, 1985
I' I' Yours, etc.,
RADOW, BRICK, PILLAI & ROSEMAN, ESQ.
Attorneys for plaintiff
277 Broadway - Suite 1600
~l I1 i~ New York, New York 10007
:; (212) 267- 2950
' TO: C l e r k of the County of New York
SNIPPETS:
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21
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ORDER & NOTICE OF STTLMNT
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EXTRACTED KEY WORDS
ATTORNEYS PEAT MARWICK MITCHELL COURT SWORN MOTION COUNTY HON MICHAEL DONTZIN YQRK RADOW BRICK PILLAI ROSEMAN CPLR COMPLAINT FAILURE SUMMARY JUDGMENT DAVID SMITH SWGRN GILL MAXCH THOMAS SHERWOOD CAHILL GORDON REINDEL PARTNERSHIP PROFESSIONAL CORPORATIONS GRANTED-TO REPLEAD |
SUPREME COURT O F THE STATE O F NEW YORK
COUNTY OF NEW YORK
- - - - - - - - - - x
- - - - - - - - - I - .
ORYX COMMUNICATIONS, INC., r
P l a i n t i f f ,
- against- .. , . .
PEAT, MARWICK, IL
MITCHEL &: co. ,
S I R S :
PLEASE TAKE NOTICE, that annexed h e r e t o i s a t r u e
copy of an Order which will be presented to the Hon. Michael
17. Dontzin, a J u s t i c e of t h i s Court on August 9, 1985.
Dated: New York, New YQrk
August 5 , 1985
CAHILL
(a
Attorneys
O f f i c e
80 Pine
New York,
TO: RADOW BRICK PILLAI & ROSEMAN
Attorneys f o r P l a i n t i ' f f
277 Broadway
New York, New York 1 0 0 0 7
, - A t a S p e c
SNIPPETS:
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22
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SHERWOOD AFFADAVITS
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EXTRACTED KEY WORDS
AFFIDAVIT ACCOUNTANTS REPLICON PREPARING GILL FINANCIAL STATEMENTS GAAP STANDARDS ORYX BASIS BERMAN AFFIDAVIT REPRESENTATION ACCORDANCE BOOKS DILIGENCE SALE PRINCIPLES REGISTRATION STATEMENT PLAINTIFF EARNINGS PROFESSIONAL ACCOUNTANTS SMITH AFFIDAVIT SWORN PRACTICE PROSPECTUS COST CONNECTION OBLIGATION BOOKKEEPER |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
~ l l -ll ----____--_____---I--------_-------_----_- X
ORYX COMMUNICATIONS, INC-. , in its own
~ capacity and as successor to and
~ assignee of the rights of Replicon, Inc., Index No. 27075/;
Plaintiff , AFFIDAVIT
-against-
$I:
PEAT, MARWICK, MITCHELL & CO. , a 1. ;
i<
~ partnership, d.
~
Defendant. X
STATE OF CALIFORNIA ) ) ss.:
COUNTY OF 1
~
THOMAS SHERWOOD, being duly sworn, deposes and says:
1. I am presently and since 1981, have been a
shareholder, director and officer of plaintiff Oryx
' Communications, Inc. (hereinafter referred to as ''Oryx'') and
prior thereto and at all xelevent times mentioned hGrein, I was
the principal shareholder, officer and director of Replicon, In
(hereinafter referred to as "Replicon"). As such, 1 am fully
familiar with the facts and circumstances of the within action
and I submit this affidavit in opposition to defendant's motion
to dismiss and in answer to the affidavit of David S. Smith,
Esq., sworn to on March 11, 1985 (hereinafter referred to as th
"Smith Affidavit") and the affidavit of Charles W. Gill, sworn
on March 11, 1985 (hereinafter referred to as the "Gill
Affidavit").
SNIPPETS:
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23
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NOTICE & COMPLAINT
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EXTRACTED KEY WORDS
ORYX YORK DEFENDANT REGISTRATION STATEMENT ORYX COMMUNICATIONS REPLICON EXHIBIT ACCOUNTANT REPORT COMPLAINT ACCOUNTING FINANCIAL INFORMATION PMM SUBSEQUENT EVENTS COUNTY REPRESENTATIONS PROSPECTUS SUPREME COURT THEREAFTER SUMMARY JUDGMENT SECURITIES AUDITED FINANCIAL STATEMENTS AFFIDAVITS RESPONSIBILITY CONSOLIDATED BALANCE SHEETS MANAGEMENT CONNECTION BALANCE SHEET ORIGINAL ENTRY |
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF N |
