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Damone v. Levy

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


October 20, 2009

JOSEPH DAMONE, INDIVIDUALLY AND AS TRUSTEE OF THE JOSEPH A. SAN FILIPPO GENERATION SKIPPING TRUST, PLAINTIFF-RESPONDENT,
v.
JOEL LEVY, DEFENDANT, JERRY ROSENBAND, DEFENDANT-APPELLANT. [AND A THIRD-PARTY ACTION]

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered April 16, 2009, which, to the extent appealed from, denied defendant Jerry Rosenband's motion for summary judgment dismissing the complaint as against him, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment in favor of Rosenband dismissing the complaint as against him.

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., Buckley, Catterson, Freedman, Abdus-Salaam, JJ.

104885/05 & 57113/05

In opposition to Rosenband's prima facie showing that he was not retained on behalf of the trust or of the estate to prepare and file the estate tax returns due in December 2001, the testimony of both plaintiff and the nonparty executrix of the estate as to when and by whom Rosenband allegedly was hired to prepare the tax return or to assist defendant Levy in preparing the return was too vague to raise an issue of fact.

In any event, the record demonstrates that it was plaintiff's recalcitrance in providing the information necessary for the filing of the estate tax return, and not Rosenband's actions, that was the proximate cause of the late filing and any resultant penalties or damages.

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

20091020

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