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Peterson v. Neville

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 15, 2009

JOHN M. PETERSON, ET AL., PLAINTIFFS-APPELLANTS, MARGARET R. POLITO, ET AL., PLAINTIFFS,
v.
MARTIN J. NEVILLE, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered October 1, 2007, which, insofar as appealed from as limited by the briefs, granted defendants' motions to dismiss the complaint to the extent of dismissing the first and second causes of action seeking an accounting of the partnerships of Neville, Peterson & Williams, and Neville Peterson LLP, unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Gonzalez, Buckley, Sweeny, Catterson, JJ.

604424/06

The causes of action seeking an accounting of the partnerships on the basis that defendants (former partners) withdrew excess profits, were properly dismissed as the tax returns of the respective partnerships state that defendants had positive capital account balances. Plaintiffs are bound by the representations that were made in the partnerships' tax returns (see Acme Am. Repairs, Inc. v Uretsky, 39 AD3d 675, 677 [2007], lv dismissed 9 NY3d 979 [2007]; Naghavi v New York Life Ins. Co., 260 AD2d 252 [1999]).

We have considered plaintiffs' remaining contentions, including that the motion court's application of the doctrine of judicial estoppel in this case violates the Supremacy Clause of the US Constitution, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090115

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