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Denenberg v. Rosen (N.Y.App.Div. 01/07/2010)

January 7, 2010

ROBERT A. DENENBERG, ETC., PLAINTIFF-RESPONDENT,
v.
WARREN ROSEN, ET AL., DEFENDANTS, BANKERS LIFE OF NEW YORK, ETC., ET AL., DEFENDANTS-APPELLANTS.



Defendants appeals from an order of the Supreme Court, New York County (Walter B. Tolub, J.), entered February 21, 2008, that, to the extent appealed from, as limited by the briefs, denied the Bryan Cave defendants' motion to dismiss the legal malpractice cause of action, denied the Repetti defendants' motion to dismiss the claim for punitive damages, denied the motions of appellants to dismiss the General Business Law § 349 and § 350 causes of action, and denied the motions of the Bryan Cave defendants, the Hartstein defendants, Bankers Life and the Thornhill defendants to dismiss the unjust enrichment causes of action.

The opinion of the court was delivered by: Moskowitz, J.

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.

Luis A. Gonzalez, P.J., David Friedman, Karla Moskowitz, Dianne T. Renwick, Helen E. Freedman, JJ.

110441/06

Plaintiff, a commodities trader, claims that all the defendants induced him to establish a pension plan that guaranteed tax benefits that the IRS later disallowed. The motion court dismissed claims against the moving defendants sounding in breach of contract, fraud and negligent misrepresentation. Plaintiff is not appealing the dismissal of these claims. Rather, the moving defendants appeal from the motion court's denial of their motions to dismiss the remaining claims against them in the 69-page complaint. We reverse the order of the motion court to the extent appealed from and dismiss the remaining causes of action against them, except for the accountant defendants, Repetti and Graf Repetti, who have abandoned that portion of their appeal challenging denial of their motion to dismiss plaintiff's claims for unjust enrichment and accounting malpractice.

Background

I. The Parties

Plaintiff commodities trader operated as a sole proprietorship. On December 26, 2002, he adopted a pension plan and became its administrator (the Plan). The Plan was effective October 1, 2001 and involved the purchase of life insurance policies for plaintiff and for his wife from Bankers Life of New York (Bankers).

Defendants Rosen and his company, Warren Rosen & Co., sell insurance and financial products. These defendants did not participate in the motions underlying this appeal.

Defendant Bankers advises and provides retirement services, employee benefits, life insurance and disability benefits.

Defendant Hartstein is an officer and controlling person of defendants ECI Pension Services LLC (ECI) and Economic Concepts Inc. (Concepts) that design and administer pension plans and sell insurance. One or both own the trademark to the "Pendulum Plan."

Defendant Thornhill controls defendant The Private Consulting Group (TPCG), a pension, insurance, consulting and brokerage firm.

Defendant Repetti is an accountant with defendant accounting firm Graf Repetti.

Defendant Bryan Cave LLP is a law firm (Bryan Cave or the firm).

Defendant Smith is a partner with ...


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