Damone v. Levy

Appellate Division of the Supreme Court of New York

Damone v. Levy

66 A.D.2d 531, 886 N.Y.S.2d 341

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 20, 2009

StatusPublished

This text of 66 A.D.2d 531 (Damone v. Levy) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Damone v. Levy, 66 A.D.2d 531, 886 N.Y.S.2d 341 (N.Y. Ct. App. 2009).

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Opinion

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 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, [532]*532Freedman and Abdus-Salaam, JJ. [See 2009 NY Slip Op 30843(11).]

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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 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, [532]*532Freedman and Abdus-Salaam, JJ. [See 2009 NY Slip Op 30843(11).]

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Bluebook (online)

66 A.D.2d 531, 886 N.Y.S.2d 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/damone-v-levy-nyappdiv-2009.