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DENENBERG v. ROSEN

110441/06

71 A.D.3d 187 (2010)

897 N.Y.S.2d 391

ROBERT A. DENENBERG, Individually and as Administrator of ROBERT A. DENENBERG, A SOLE PROPRIETORSHIP DEFINED BENEFIT PENSION PLAN, Respondent, v. WARREN ROSEN et al., Defendants, and BANKERS LIFE OF NEW YORK, Also Known as BANKERS LIFE INSURANCE COMPANY OF NEW YORK, et al., Appellants.

Appellate Division of the Supreme Court of New York, First Department.

Decided January 7, 2010.

Attorney(s) appearing for the Case

K & L Gates LLP, New York City ( Catherine R. Keenan of counsel), for Bankers Life of New York, appellant.

Calinoff & Katz, LLP, New York City ( Robert A. Calinoff of counsel), for Kenneth R. Harstein and others, appellants.

Robert P. Levine, P.C., Yorktown Heights ( Robert P. Levine of counsel), for Gary L. Thornhill and another, appellants.

McDermott Will & Emery, LLP, Chicago, Illinois ( Joshua G. Herman and Douglas E. Whitney of the bar of the State of Illinois, admitted pro hac vice, of counsel), and McDermott Will & Emery LLP, New York City ( Daniel N Jocelyn of counsel), for Richard C. Smith and another, appellants.

Harrington, Ocko & Monk, LLP, White Plains ( Michael W. Freudenberg and Kevin J. Harrington of counsel), for John Repetti and another, appellants.

Schrier Fiscell & Sussman, LLC, Garden City ( James B. Fiscella and Richard E. Schrier of counsel), for respondent.

GONZALEZ, P.J., FRIEDMAN, RENWICK and FREEDMAN, JJ., concur.

OPINION OF THE COURT

MOSKOWITZ, J.

Plaintiff, a commodities trader, claims that all the defendants induced him to establish a pension plan that guaranteed tax benefits that the IRS later disallowed. The motion court dismissed claims against the moving defendants sounding in breach of contract, fraud and negligent misrepresentation. Plaintiff is not appealing the dismissal of these claims. Rather, the moving defendants appeal from the motion court's denial...

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