In Dimsey v. Bank of New York, 14 Misc 3d 1205[A], 831 NYS2d 359, 2006 NY Slip Op 52418[U] [Sup Ct New York County 2006]) the plaintiff opened a discretionary brokerage account with the defendant and directed the defendant to sell the shares at a target price within a specific time frame. The defendant failed to follow the agreement, resulting in the plaintiff's financial detriment, and the plaintiff sued defendant for breach of contract, breach of fiduciary duty, negligence and gross negligence. The defendant moved to dismiss only the breach of fiduciary duty, negligence and gross negligence claims. The Dimsey Court concluded that the defendant's conduct did not rise to the level of gross negligence. However, the Court first pointed out that the First Department had found that "financial planners are not professionals for the purpose of professional malpractice." The Court then stated that, to the extent plaintiff alleged a claim for "simple" negligence, the economic loss rule barred such claim. Consequently, the Court concluded that "having established that the defendant is not a professional for the purpose of professional malpractice and not liable for negligence, it logically follows that a gross negligence cause of action cannot survive. Further, the plaintiff fails to state specific facts to support his gross negligence claim" (id.) .