Holloway v Ernst & Young LLP, 2011 NY Slip Op 02139 [82 AD3d 611]

March 24, 2011

Appellate Division, First Department

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Reed Smith LLP, New York (Raymond A. Cardozo of counsel), for appellant.

Vinson & Elkins LLP, New York (Clifford Thau of counsel), for respondent.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered July 23, 2010, which granted defendant’s motion to dismiss the complaint, unanimously affirmed, with costs.

Plaintiff is the former chairman, president, and chief executive officer of GMH Associates, Inc., a publicly traded company. Defendant accounting firm provided auditing services to GMH. The allegations in the complaint describing plaintiff’s significant contact with defendant do not support his claim that he is an intended third-party beneficiary of the engagement letters between GMH and defendant ( see Raffa v Stilloe Roofing & Siding , 182 AD2d 901, 902 [1992]), since a corporation acts solely through its officers and employees ( see Diamond v Oreamuno , 29 AD2d 285, 287 [1968], affd 24 NY2d 494 [1969]). Because plaintiff was a Pennsylvania resident, his negligence, negligent misrepresentation, and breach of fiduciary duty causes of action are time-barred under the governing two-year Pennsylvania statute of limitations ( see 42 Pa Cons Stat § 5524 [7]; see CPLR 202; Kat House Prods., LLC v Paul, Hastings, Janofsky & Walker, LLP , 71 AD3d 580 [2010]). Concur—Mazzarelli, J.P., Saxe, Friedman, Acosta and Freedman, JJ. [Prior Case History: 28 Misc 3d 1214(A), 2010 NY Slip Op 51319(U).].