Denenberg v Rosen

Denenberg v Rosen 2012 NY Slip Op 01775 Decided on March 13, 2012 Appellate Division, First Department 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.

Decided on March 13, 2012
Tom, J.P., Saxe, Acosta, DeGrasse, Román, JJ. 7076-
110441/06 7077 602453/07 603409/08

[*1]Robert A. Denenberg, etc., Plaintiff-Respondent,

v

Warren Rosen, et al., Defendants-Appellants, John Repetti, et al., Defendants-Respondents-Appellants, Bankers Life of New York, etc., et al., Defendants-Respondents. [And Other Actions]




Harrington, Ocko & Monk, LLP, White Plains (Kevin J.
Harrington of counsel), for respondents-appellants.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White
Plains (Emily A. Hayes of counsel), for appellants.
Schrier, Fiscella & Sussman, LLC, Garden City (Richard E.
Schrier of counsel), for Robert Denenberg, respondent.
K & L Gates LLP, New York (Alyssa B. Cohen of counsel), for
Bankers Life of New York, respondent.
Calinoff & Katz LLP, New York (Robert A. Calinoff of
counsel), for Kenneth R. Hartstein, ECI Pension Services, LLC and
Economic Concepts, Inc., respondents.
McDermott Will & Emery LLP, New York (John Litwinski of
counsel), for Richard C. Smith and Bryan Cave LLP,
respondents.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered March 1, 2011, which, to the extent appealed from, denied the motion of defendants Warren Rosen and Warren Rosen & Co. (Rosen) for summary judgment dismissing plaintiff's unjust enrichment claim as against them and the cross claims of defendants John Repetti and Graf Repetti & Co., LLP (Repetti) for contribution and indemnification as against them, denied the cross motion of Repetti to dismiss plaintiff's cause of action for unjust enrichment as against them, and granted [*2]the motions of defendants Bankers Life of New York (Bankers), Kenneth R. Hartstein, ECI Pension Services, LLC, Economic Concepts, Inc. (collectively Hartstein), and Richard C. Smith and Bryan Cave, LLP (collectively Bryan Cave) to dismiss Repetti's cross claims for contribution and indemnification as against them, unanimously affirmed, with costs.

In this action alleging that defendants induced plaintiff to establish a pension plan that guaranteed tax benefits that were later disallowed, the motion court properly determined that plaintiff's unjust enrichment claims as against Rosen, an insurance broker, and Repetti, an accountant, were viable. Plaintiff sufficiently alleges that these defendants were enriched, at plaintiff's expense, by receiving financial incentives in return for their marketing and promotion of the tax shelter scheme (see generally Mandarin Trading Ltd v Wildenstein, 16 NY3d 173, 182 [2011]; see also Georgia Malone & Co. v Rieder, 86 AD3d 406, 408-409 [2011]).

The motion court properly dismissed Repetti's cross claims for contribution and common-law indemnification against Bankers, the provider of the insurance policies, Hartstein, who administered the pension plan, and Bryan Cave, his attorneys. It has been determined in this litigation and in the prior appeal (see 71 AD3d 187 [2010], lv dismissed 14 NY3d 910 [2010]) that, as relevant to plaintiff's claims, these defendants did not give plaintiff professional advice, did not have a fiduciary or confidential relationship with him upon which a duty of care could be imposed and cannot be held liable to plaintiff or Repetti based upon their opinion letters or promotional materials (see Seldin v Smith, 76 AD3d 623 [2010]). Moreover, notwithstanding the policy liberally favoring the granting of permission to amend pleadings, Repetti has not shown that amendment of the cross claims was warranted.

The court also properly determined that Rosen owed plaintiff a duty to disclose information that was relevant to affairs entrusted to them. Accordingly, they were not entitled to dismissal of Repetti's cross claims against them.

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

ENTERED: MARCH 13, 2012

CLERK