Yee Sing Tung v. Mon-Leang Mui , 689 N.Y.S.2d 46 ( 1999 )

—Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered January 6, 1998, after a jury trial, in favor of defendant accountant dismissing plaintiff client’s complaint for fraud and breach of fiduciary duty, unanimously affirmed, with costs.

Plaintiff’s mid-trial motion to add a malpractice cause of action was properly denied in view of the obvious prejudice to defendant, who did not hire an expert to testify as to the accepted standards of care in a tax audit and whether defendant’s conduct conformed thereto (see, Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23-24; Sharkey v Locust Val. Mar., 96 AD2d 1093, appeal dismissed 61 NY2d 669; Vega v Lenox Hill Hosp., 235 AD2d 302). The trial court adequately and repeatedly instructed the jury that defendant’s testimony regarding out-of-court statements made to him by the IRS agent, claimed on appeal to constitute hearsay, was admitted not for their truth but to explain defendant’s actions. The verdict was not against the weight of the evidence. Concur— Ellerin, P. J., Sullivan, Wallach, Lerner and Buckley, JJ.