Damone v Levy

Damone v Levy 2009 NY Slip Op 07463 [66 AD3d 531] October 20, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

Joseph Damone, Individually and as Trustee of the Joseph A. San Filippo Generation Skipping Trust, Respondent,
v
Joel Levy, Defendant, and Jerry Rosenband, Appellant. (And a Third-Party Action.)

—[*1] Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), for appellant.

Tarter Krinsky & Drogin LLP, New York (Debra Bodian Bernstein of counsel), for respondent.

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.

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 [*2]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. Concur—Tom, J.P., Buckley, Catterson, Freedman and Abdus-Salaam, JJ. [See 2009 NY Slip Op 30843(U).]