Peterson v Neville

Peterson v Neville 2009 NY Slip Op 00124 [58 AD3d 489] January 15, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 11, 2009

John M. Peterson et al., Appellants, et al., Plaintiffs,
v
Martin J. Neville et al., Respondents.

—[*1] John M. Peterson, appellant pro se.

George W. Thompson, appellant pro se.

Reed Smith LLP, New York (Casey D. Laffey of counsel), for Martin J. Neville, respondent.

Benowich Law, LLP, White Plains (Leonard Benowich of counsel), for David C. Williams, respondent.

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.

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 [*2]application of the doctrine of judicial estoppel in this case violates the Supremacy Clause of the US Constitution, and find them unavailing. Concur—Tom, J.P., Gonzalez, Buckley, Sweeny and Catterson, JJ.