Margaret R. Polito, et al., Plaintiffs, v. NEVILLE (2009)

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered October 1, 2007, which, insofar as appealed from as limited by the briefs, granted defendants' motions to dismiss the complaint to the extent of dismissing the first and second causes of action seeking an accounting of the partnerships of Neville, Peterson & Williams, and Neville Peterson LLP, unanimously affirmed, with costs.

The causes of action seeking an accounting of the partnerships on the basis that defendants (former partners) withdrew excess profits, were properly dismissed as the tax returns of the respective partnerships state that defendants had positive capital account balances.   Plaintiffs are bound by the representations that were made in the partnerships' tax returns (see Acme Am. Repairs, Inc. v. Uretsky, 39 A.D.3d 675, 677, 834 N.Y.S.2d 542 [2007], lv. dismissed 9 N.Y.3d 979, 848 N.Y.S.2d 15, 878 N.E.2d 598 [2007];  Naghavi v. New York Life Ins. Co., 260 A.D.2d 252, 688 N.Y.S.2d 530 [1999] ).

We have considered plaintiffs' remaining contentions, including that the motion court's application of the doctrine of judicial estoppel in this case violates the Supremacy Clause of the U.S. Constitution, and find them unavailing.