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COMMON FUND FOR NON-PROFIT ORGANIZATIONS v. KPMG P

February 6, 1997

THE COMMON FUND FOR NON-PROFIT ORGANIZATIONS, Plaintiff, against KPMG PEAT MARWICK L.L.P., KPMG PEAT MARWICK, FIRST CAPITAL STRATEGISTS, JOHN J. McCOLLUM, ROBERT E. FRITH, JR., KEITH H. CUNNINGHAM, and PAUL J. GANGEMI, Defendants.


The opinion of the court was delivered by: CEDARBAUM

 Cedarbaum, J.

 This case arises out of losses sustained by The Common Fund for Non-Profit Organizations ("the Common Fund") when Kent A. Ahrens, an employee of First Capital Strategists ("First Capital"), engaged in unauthorized and unhedged securities trading for the Common Fund's account. At the time, First Capital was the Common Fund's exclusive agent for securities lending and arbitrage activities. The Common Fund has sued First Capital and the four general partners of First Capital on a variety of grounds, and has sued KPMG Peat Marwick LLP ("Peat Marwick"), the Common Fund's auditors at the time, for professional malpractice, breach of contract, and negligent misrepresentation. First Capital has asserted three cross-claims against Peat Marwick: first, a claim for breach of contract under a third party beneficiary theory; second, a claim for negligence based on professional malpractice; and third, a claim for contribution. Peat Marwick now moves to dismiss those of First Capital's cross claims which allege breach of contract and professional malpractice. On the assumption that all of the allegations of the cross-claims are true, for the reasons discussed below, the motion is granted.

 1. Third Party Beneficiary

 First Capital alleges that Peat Marwick is liable to it for damages because Peat Marwick breached a contract between Peat Marwick and the Common Fund to which First Capital was a third party beneficiary. First Capital can only recover for a breach of this contract if it was an intended rather than an incidental beneficiary. Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., Inc., 66 N.Y.2d 38, 44, 495 N.Y.S.2d 1, 485 N.E.2d 208 (1985).

 First Capital also alleges that the Common Fund intended the agreement to benefit First Capital as well as to benefit the Common Fund. This was allegedly because the Common Fund and First Capital had an agreement that the Common Fund would supervise First Capital's and its employees' securities lending and arbitrage activities for the Common Fund. The Common Fund allegedly earned significant fees for its supervision of First Capital. Thus, First Capital argues, the Common Fund intended to benefit First Capital by relieving First Capital of the expense of hiring its own auditor, by satisfying First Capital that it was in compliance with the Common Fund's guidelines, and by satisfying First Capital that its controls were sufficient to detect unauthorized trading. The allegations that First Capital argues demonstrate the Common Fund's intent are: (1) that the Common Fund had always hired outside auditors to perform these functions for First Capital; (2) that the Common Fund included First Capital at a meeting with Peat Marwick where the scope of Peat Marwick's audit procedures for First Capital was discussed and decided; and (3) that the Common Fund sent a draft of Peat Marwick's proposed audit plan to First Capital in October 1993 for review and comment.

 Even if all these allegations are true, First Capital has not sufficiently alleged that it was an intended beneficiary of the agreement between Peat Marwick and the Common Fund. The allegations suggest nothing more than that an agreement was made that Peat Marwick would give special scrutiny to First Capital. But the allegations do not suggest that the agreement was made primarily to benefit First Capital. On the contrary, the allegations suggest that the agreement was for the primary benefit and protection of the Common Fund, with at most a secondary intent by the Common Fund to benefit First Capital.

 Furthermore, there is no allegation that supports an inference that Peat Marwick intended to benefit First Capital. First Capital only makes two allegations which directly connect Peat Marwick to First Capital. First, First Capital alleges that at an August 1993 meeting among all three parties, Peat Marwick agreed with the Common Fund to monitor First Capital's compliance with the 1993 Guidelines. Second, First Capital alleges that certain audit services were performed by Peat Marwick on the premises of First Capital. Those allegations are insufficient to support an inference that Peat Marwick intended First Capital to be a beneficiary of the contract.

 The Restatement (Second) of Contracts § 302 states that a beneficiary of a promise is an intended beneficiary if "recognition of a right to performance in the beneficiary is appropriate to effectuate the intentions of the parties . . ." This approach to third party beneficiary law was adopted by the New York Court of Appeals in Fourth Ocean and was cited by both Peat Marwick and First Capital at oral argument and in subsequent letters to the court. In this case, First Capital has not made sufficient allegations to permit an inference that recognition of First Capital as a third party beneficiary would be appropriate to effectuate the intentions of the parties. First Capital was at most an incidental beneficiary of the contract.

 2. Professional Malpractice

 In European American Bank and Trust Company v. Strauhs & Kaye, 65 N.Y.2d 536, 483 N.E.2d 110, 493 N.Y.S.2d 435 (1985), the companion case to Credit Alliance, the New York Court of Appeals held that a lender sufficiently alleged a negligence claim against its borrower's accountant. In that case, it was alleged that the accountant knew that the lender was relying on the financial statements, and that representatives of the accountant and the lender were in direct oral and written communication during the entire course of the lending relationship. Id. at 544. It was further alleged that representatives of the accountant and lender met together to discuss the accountant's evaluations and the lender's reliance thereon. Id.

 In Security Pacific Business Credit, Inc. v. Peat Marwick Main & Co., 79 N.Y.2d 695, 586 N.Y.S.2d 87, 597 N.E.2d 1080 (1992), the New York Court of Appeals held that a single unsolicited telephone call about an audit report from a plaintiff lender to the borrower's accountant was insufficient linking conduct to demonstrate the necessary "linking conduct." The Court contrasted the facts to those in European American, where "the accountants had multiple, direct and substantive communications ...


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