Penner v. Hoffberg Oberfest Burger & Berger

303 A.D.2d 249, 755 N.Y.S.2d 835, 2003 N.Y. App. Div. LEXIS 2751

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 2003
• Status: Published

Opinion

Order, Supreme Court, New York County (Louis York, J.), entered on or about April 16, 2002, which, to the extent appealed from, granted defendants’ motion pursuant to CPLR 3211 insofar as to dismiss plaintiff’s claims for back taxes and interest and his ninth through twelfth causes of action, unanimously affirmed, with costs.

Plaintiff’s malpractice claims against defendant accountants for back taxes and interest were properly dismissed, since plaintiffs tax liability was not attributable to an act or omission on defendants’ part (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 422-423 [1996]; Alpert v Shea Gould Climenko & Casey, 160 AD2d 67, 71-72 [1990]). Also properly dismissed were plaintiffs causes of action for breach of contract and fraudulent concealment since those causes were duplicative of plaintiffs claims for accounting malpractice (see Nevelson v Carro, Spanbock, Kaster & Cuiffo, 290 AD2d 399, 400 [2002]; Levine v Lacher & Lovell-Taylor, 256 AD2d 147, 151 [1998]; Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 38-39 [1998]). Finally, plaintiffs twelfth cause of action, predicated upon defendants’ alleged failure to submit to his attention quarterly tax vouchers for making estimated payments, was also properly dismissed since a taxpayer has a nondelegable duty to file timely tax returns (see McMahan v Commissioner of Internal Revenue, 114 F3d 366, 369 [1997]; Fleming v United States, 648 F2d 1122 [1981]). Concur — Mazzarelli, J.P., Andrias, Saxe, Ellerin and Williams, JJ.