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SHALAM v. KPMG LLP

112732/05, 5159

89 A.D.3d 155 (2011)

931 N.Y.S.2d 592

2011 NY Slip Op 7590

JOHN J. SHALAM, Respondent, v. KPMG LLP et al., Defendants, BAYERISCHE HYPO-UND VEREINSBANK AG et al., Appellants.

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

Decided October 27, 2011.

Attorney(s) appearing for the Case

Kasowitz, Benson, Torres & Friedman LLP, New York City ( Mark W. Lerner , Mark P. Ressler , and Jon Avins , of counsel), for appellants.

Fensterstock & Partners LLP, New York City ( Blair Courtney Fensterstock , Eugene D. Kublanovsky , Allison M. Charles , and Michael T. Phillips, II , of counsel), for respondent.

TOM, J.P., MOSKOWITZ, ACOSTA and ABDUS-SALAAM, JJ., concur.

OPINION OF THE COURT

SAXE, J.

Plaintiff John J. Shalam paid $3.85 million to participate in a tax shelter, on the recommendation of a financial advisor, in order to avoid paying taxes on capital gains of approximately $50 million. After the Internal Revenue Service (IRS) disallowed the scheme, plaintiff claimed he had been defrauded by defendants into believing that the scheme was legal. Based on what plaintiff admittedly knew and what he should have known...

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