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1
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COVER SHEET
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EXTRACTED KEY WORDS
RESPONDENT |
46-3004R~200M-85
<
COUNTY CLERK, NEW YORK COUNTY `:\
INDEX NUMBER
Application for INDEX NUMBER pursuant to Section 80&+ -,: .,
C.P.L.R.
FEE 835.00
Spaces below to be TYPED or PRINTED by applicant
l
TITLE OF ACTION OR PROCEEDING
CHECK ONE
I%L, /E-XWJ~~l~, I%,,
q Sk%YER
TRANSACTION
TRANSACTION
Name and address of
Attorney for Plaintiff 0 ppaJltE/mL'c
or Petitioner. TN&-- pkd&z
Y 2 a LLYk i
I
Telephone No. trl,,, A ,/ b-Y.
?A ,r*,
Name and address of 46 ~U>U
Attorney for Defendant
or Respondent.
Telephone No.
A. Nature and object of action or AlF/&,I
c4us/tik
Nature of special proceeding /n&u&V
ra PL.&-P/FI--
B. Application for Index Number filed by: Plaintiff
SNIPPETS:
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2
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SHALLERT AFF
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EXTRACTED KEY WORDS
PRICE WATERHOUSE COMPLAINT DISMISSING DEFENDANT COUNTY SWORN CPLR ALLEGES NEGLIGENT REPORT ORDER PURSUANT HERETO EXHIBIT SUMMONS ACCOMPANYING MEMORANDUM LAW PREPARING FINANCIAL STATEMENTS TICOR PRINT NETWORK LIMITED PROCEDURES PRICE STATUTE MALPRACTICE UNAMBIGUOUS DISCLAIMER REPRESENTATIONS SUFFISHOULD FAILS COGNIZABLE DAMAGE PLAINTIFF PURPORTED NEGLIGENCE |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------_________________ x
ECL INDUSTRIES, INC., ..
Plaintiff, Index No. 27067/86
*
-against- . AFFIDAVIT OF EDWIN
PRICE WATERHOUSE (a/k/a PRICE G. SCHALLERT
WATERHOUSE & CO.), *.
Defendant.
----II-------------_l_______l________ X
STATE OF NEW YORK ): ss.:
COUNTY OF NEW YORK)
EDWIN G. SCHALLERT, being duly sworn, deposes
and says:
1. I am an attorney admitted to the bar of
the State of New York and am associated with the firm
of Debevoise & Plimpton, counsel for defendant Price Waterhouse
I submit this affidavit in support of the motion by Price
Waterhouse for an order pursuant to CPLR 3014, 3211(a)(5)
and 3211(a)(7) dismissing the complaint.
2. Attached hereto as Exhibit 1 is a copy of
the plaintiff's Summons with Notice which was served on
defendant on November 21, 1986. Attached hereto as Exhibit
2 is a copy of plaintiff's complaint, which was served
on defendant on December 30, 1986.
3. As explained in the accompanying memoran-
dum of law, the complaint alleges that Price Waterhouse
was negligent in preparing a report dated November 11,
1983 on the financial statements of Ticor Print Network,
Inc. ("TPN") and a letter dated December 7, 1983 des-
cribing certain limited procedures Price Waterhouse had
followed to determine whether there had been any change
in TPN's financial status. With respect to the November
11, 1983 report, the complaint should be dismissed be-
cause it is barred by the three-year statute of limita-
tions applicable to a claim of accountant's malprac-
tice. CPLR 2114(6). With respect to the December 7,
1983 letter, the complaint should be dismissed because
the letter contains an unambiguous disclaimer that Price
Waterhouse makes no representations regarding the suffi-
ciency of its limited review. Moreover, the complaint
should be dismissed because it fails to allege any cog-
nizable damage to plaintiff resulting from the purported
negligence.
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3
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COMPLAINT
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EXTRACTED KEY WORDS
AGREEMENT REPORT CPY-NEW YORK AUDIT BALANCE SHEET MINNESOTA HERETO THEREIN STATMMMNTS CONFORMITY REP01 BOOKS EXTEND AMOUNTS REPRESENTATI MANAGEMENT CITY SALES TAX REQUIREMENTS SUPPORT FAILURE ADHERE CALIFORNIA LAW COMPLAINT AROSE FACTS MINNESOTA OFFICE CPY-CHICAGO ACCEPTED AUDITING STANDARDS CARE COMPETENCE |
ii
SUP- OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--"""""""--'-"----------------------x
ECL INDUSTRIES, INC.,
Plaintiff,
-against-
PRICE WATERHOUSE'(a/k/a PRICE
WATERHOUSE & CO.)
Defendant.
Plaintiff ECL Industries, Inc., by
Oppenheimer Wolff & Donnelly, as and for its
alleges as follows:
1. Plaintiff ECL Industries, Inc.,
as Norlin Industries, Inc., is a corporation
existing under the laws of the State of Delaware,
principal place of business at 75 Varick Street,
York 10013.
2. Defendant Price Waterhouse
referred to as ttPW'i), also known as Price Waterhouse
a partnership with its principal place of business
the City, County, and State of New York, and is engaged in th
public accounting business. At all relevant
present, PW held and holds itself out as a
independent certified public accountants and
possessing the skill, ability, experience, and
public accountants and auditors. PW does, and at
times, did business within the State of New York.
3. Ticor is a corporation organized
under the laws of the State of California, with
place of business in Los Angeles, California.
".
4. southern Pacific Company (hereinafter
to a8 aSPcn) is a corporation organized and existing
laws of the State of Delaware, with its principal
business in San Francisco, California.
5. Prior to December 9, 1983, Ticor owned all of
the issued and outstanding stock of every class of Ticor Prin
SNIPPETS:
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4
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DEF MEM SUP MTD
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EXTRACTED KEY WORDS
STOCK PRICE WATERHOUSE ECL COUNTY COMM PLAINTIFF SUPREME COURT TPN STOCK PURCHASE SWORN SENATE FINANCE COMM TION ECL INDUSTRIES DIREC-PRICE WATERHOUSE ACT DUTY CARE TICOR PROSSER KEETON LAW TORTS WORTH PAID SOLD COUNSEL EDWIN SCHALLERT |
a
a SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------x
a ECL INDUSTRIES, INC.,
-against-
PRICE WATERHOUSE (a/k/a
7 6
& co.)
- - - -
- - - - - - - - - - - - - - * - d
DEFENDANT'S
IN
MOTION TO
Preliminary
Defendant Price
randum in support of its
CPLR 3014, 3211(a)(5) and
plaint of plaintiff ECL
the action is barred by the
because the complaint fails
The crux of ECL's
by Price Waterhouse, dated
financial statements of
("TPN"). This action was
a
a mons with Notice on November 21, 1986,l and
untimely under the three-year statute of limitations
applicable to a claim of accountant's malpractice.
l 214(6). ECL seeks to avoid the statute by
a third party delivered Price Waterhouse's
"on or about" November 23, 1983. The law is settled,
however, that the date the accountant performs
edly negligent work -- and not the subsequent
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