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Alan Palazzo v. Montgomery Distributors

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


April 2, 2012

ALAN PALAZZO,
RESPONDENT,
v.
MONTGOMERY DISTRIBUTORS, LLC,
APPELLANT.

Appeal from a judgment of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), entered June 28, 2010.

Palazzo v Montgomery Distribs., LLC

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 2, 2012

PRESENT: LaCAVA, J.P., MOLIA and IANNACCI, JJ

The judgment, after a non-jury trial, awarded plaintiff the principal sum of $5,000.

ORDERED that the judgment is reversed, without costs, and the action is dismissed.

Plaintiff commenced this small claims action to recover the principal sum of $5,000 against his former employer. Plaintiff claims that defendant was required to make a contribution to his SEP IRA account in 2008. At a non-jury trial, plaintiff failed to establish that, in 2008, defendant had executed the 5305-SEP form issued by the Internal Revenue Service, which authorizes an employer to make such contributions to its employees' SEP IRA accounts and defendant's witness testified that, in fact, there had been no agreement to make contributions to defendant's employees' SEP IRA accounts in 2008. Thus, plaintiff failed to establish defendant's liability. As substantial justice was not done between the parties in accordance with the rules and principles of substantive law (UDCA 1804, 1807), the judgment is reversed and the action dismissed.

LaCava, J.P., Molia and Iannacci, JJ., concur.

Decision Date: April 02, 2012

20120402

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