Upon the foregoing papers in this action by plaintiffs, limited partners of Parklex Associates (Parklex), a limited partnership, alleging, inter alia, fraud, negligence, and malpractice, defendant Sukenik, Segal & Graff, P.C. (SS&G), a law firm, moves for an order, pursuant to CPLR 3211 (a) (1) and (7), dismissing plaintiffs' eleventh and sixth causes of action as against it, plaintiffs' eighteenth cause of action as against it and Jehoshua Graff (Graff) (one of its partners), and plaintiffs' twenty-ninth cause of action as against David Segal (Segal) (another one of its partners).^[FN1] Defendant Marcum & Kliegman LLP (Marcum) moves, pursuant to CPLR 3211 (a) (1), (3), and (7), to dismiss plaintiffs' second amended complaint as against it.^[FN2]

On September 30, 1983, Parklex issued a confidential private placement [*2]memorandum to potential investors (the memorandum), offering them an opportunity to be limited partners in Parklex. Parklex was intended to be an opportunity for financial investment with attendant tax benefits. Parklex was formed to acquire, own, and operate a 17-story (plus penthouse) office building located at 114 East 32nd Street, in Manhattan (the Parklex premises). The memorandum set forth that a principal benefit of an investment in Parklex would be the application of partnership tax deductions to a limited partner's income.

The memorandum identified Parklex Associates, Inc. (Parklex Corporation) as Parklex's general partner. Bruce Ratner (Ratner) was Parklex's initial limited partner and a shareholder of Parklex Corporation. Ascot Brokerage Ltd. (Ascot) was an entity operated by Ratner. Parklex offered 26 units of ownership at the cost of $140,000 per unit. Plaintiffs became limited partners by contributing cash or a combination of cash and promissory note financing, and many of them shared the cost of a single unit of ownership.

In September 1983, a limited partnership agreement (the partnership agreement) setting forth plaintiffs' contractual rights was entered into between Parklex Corporation, as the general partner of Parklex, and plaintiffs, as the limited partners of Parklex. On November 15, 1983, Parklex purchased the Parklex premises for a purchase price of $8 million. At the closing of title, Parklex executed two promissory notes and a wrap around note and mortgage (the wrap) in favor of East Side Associates, Inc. (East Side) in the amount of $7,370,000. The entire unpaid principal balance of the wrap was due and payable on October 31, 1998.

On August 26, 1991, Parklex sent plaintiffs a letter informing them that defendant Fred Deutsch (Fred), through a corporation, was going to acquire the shares of Parklex Corporation as well as the wrap and the management agreement of the building's managing agent. This purchase was alleged to be intended as a mechanism to avoid adverse tax consequences to the limited partners. On September 25, 1991, Ascot entered into an Asset Purchase Agreement with 114 East 32nd Realty Corp. (114 East Corp.), which is owned and operated by Fred. Fred, Arie Deutsch (Arie) (Fred's son), Joshua Deutsch (Joshua) (Fred's father), and Penny Baird (Penny) (Fred's wife) then became corporate officers of Parklex Corporation. Fred claims to have acquired all of the shares of Parklex Corporation and to have become the holder of the wrap through 114 East Corp. in November 1991.

SS&G is the law firm which represented Fred in the Asset Purchase Agreement transaction, and in connection with Fred's acquisition (directly or through 114 East Corp.) of the shares of Parklex Corporation and the assets of the wraparound mortgage. From 1991 until July 2006, SS&G represented both Parklex Corporation and Parklex, Fred, and Arie. By letter dated July 21, 1992, plaintiffs were informed of Fred's completion of his takeover as the general partner of Parklex. This letter described a dire financial condition, stating that the Parklex premises' value was less than its mortgage and that the [*3]marketplace had taken away the limited partners' equity in the Parklex premises. Plaintiffs claim, however, that despite these representations by Parklex Corporation, the Parklex premises continued to generate millions of dollars, which were paid from the Parklex account to companies owned and dominated by Fred, Arie, and Penny.

Plaintiffs allege that Fred has controlled and dominated Parklex Corporation from 1991 to date, and that he retained two management companies, 32nd Street Associates LLC (32nd Street) and Citisites, Inc. (Citisites) (which preceded 32nd Street), to manage the Parklex premises and pay the expenses of Parklex. Plaintiffs claim that 32nd Street and Management Services LLC (Management) (a management company through which Fred runs his businesses) were owned, controlled, and dominated by Fred and Arie, and that between 1999 and 2004, Management received more than $2,000,000 without providing services to Parklex (i.e., it paid various personal expenses of Fred).

On December 8, 1997, Parklex entered into a mortgage on the Parklex premises with Collateral Acquisition Corporation (Collateral Corporation) which, on March 15, 2005, is alleged to have assigned the mortgage to Collateral Acquisition LLC (Collateral LLC). Arie executed the assignment as vice-president of Collateral Corporation, and executed a mortgage satisfaction document on May 1, 2006 as manager of Collateral LLC. Despite Arie's statement in the assignment that the unpaid balance was equal to the original mortgage, 32nd Street, on behalf of Parklex, allegedly paid Collateral Corporation $7,602,540.32 from January 1998 through December 2004. There were also allegedly payments of $80,500 from 32nd Street, on behalf of Parklex, made between 2001 and 2004, to 61st Street Associates, LLC (61st Street), which was allegedly controlled by Fred and Arie, and which Fred uses to pay personal expenses.

Plaintiffs allege that on December 6, 1999, Citisites (which is owned and operated by Fred) issued a check to Amazon.com for $940.50 for the purchase of 75 New York City Zagat surveys; that Parklex paid for Fred's and Penny's automobile insurance in 2004 and 2005; and that Fred authorized SPL Brokerage, a tenant at the premises to reduce its rent by $7,500 in return for it paying the insurance costs for Videosave Corporation and/or Videosave.com, which are owned and operated by Fred. Plaintiffs also allege that 32nd Street, on January 9, 2004, issued a check, executed by Fred, to Management for $35,000, issued a check for $11,000 as an advance to Videosave.com, and wrote a check dated March 30, 2005 for $7,000 for payroll and a check dated April 14, 2005 for $1,955.25 for surveillance services to Videosave Corporation. Plaintiffs assert that none of the foregoing had any business benefit to Parklex.

Marcum has been the accountant for Parklex since 1998. From 1983 through 1995, plaintiffs had received yearly K-1 tax statements for Parklex which permitted them to report the tax consequences of their interests in Parklex. However, beginning in 1995 through 2005, plaintiffs were not provided with any K-1 tax statements. It is undisputed that from the tax periods of December 31, 1995 through December 31, 2005, no income tax returns were filed with the United States Internal Revenue Service (the Internal [*4]Revenue Service) for Parklex.

Plaintiff Diedrich K. Holtkamp (Holtkamp) states that successively in 2001, 2002, 2003, 2004, 2005, and 2006, he attempted to obtain copies of his K-1 tax statements from Parklex, Fred, Marcum, Arie, SS&G, and Parklex Corporation. By letter dated March 28, 2006 to Marcum, Holtkamp demanded copies of his K-1 tax statements from 2002, 2003, 2004, and 2005. On April 10, 2006, SS&G sent Holtkamp his 2002, 2003, and 2004 K-1 tax statements. Plaintiffs claim that the K-1s disclosed to them by SS&G were fraudulent and never filed with the Internal Revenue Service. Neither Holtkamp nor any other plaintiff has received a K-1 tax statement for 2005. In addition, plaintiff Jonathan P. Galef (Galef) requested his K-1 tax statements from Fred and/or Arie every year from 1995 to 2004, but never received any of them. In 2002, plaintiff Stuart Rosen (Rosen) also requested tax information from Marcum, and received partnership returns for 1998 through 2000, which he alleges were fraudulent and never filed with the Internal Revenue Service. Rosen did not receive his K-1 tax statement for 2001 or any K-1 tax statement thereafter. All of the other plaintiffs have not been sent their K-1 tax statements in more than 10 years.

In December 1998, after the original maturity date of the wrap, Parklex did not repay the debt secured by the wrap, which then allegedly exceeded $30 million. Fred, as the holder of the wrap, claims to have had the right to foreclose the mortgage. In order to avoid foreclosure, Fred claims to have converted a portion of the wrap debt into equity, that is, a 94% limited partnership interest in Parklex. Fred then held 95% of the limited partnership (this 94% plus a 1% limited partnership interest which he held as the general partner). Fred's claim that he refinanced the debt to equity is in contrast to sworn statements made by Arie that there had been no change in Parklex's membership and composition since its formation in 1983. The Parklex 1998, 1999, and 2000 partnership tax filings received by Rosen from Marcum do not reflect the existence of the wrap and report the existence of approximately $13 million in mortgages. The 1998, 1999, and 2000 K-1 tax statements sent by Marcum to Holtkamp and Rosen also do not reflect a reduction in Holtkamp's interest in Parklex.

Fred claims that after October 31, 1999, many payments were made during the period 2000-2005 by or on behalf of Parklex towards its obligation on the wrap. In May 2006, Fred, as the holder of a 95% limited partnership interest in Parklex, sold the Parklex premises to Morgan 32 Holding LLC (Morgan).

On March 16, 2006, Fred and Arie executed an incumbency certificate, acknowledging that Parklex and 244 East LLC had accepted two loans from Jay Kimmel, as nominee, and to Alter Mantel LLP. The incumbency certificate states that a loan of $3 million was made by Jay Kimmel as nominee to Parklex and that a loan of $1.5 million was made by Alter Mantel LLP to Parklex with the approval of Fred, Arie, and Parklex Corporation. It is alleged that the proceeds of the mortgage were used to purchase 244 East 62nd Street, in Manhattan (the target property) in a reverse IRC § 1031 tax exchange. [*5]

On May 26, 2006, Fred, Arie, and/or Parklex Corporation distributed $1,683,000 to plaintiffs and authorized Parklex Corporation to be paid $17,000 from the proceeds of the sale. They mailed checks in the total amount of $1,683,000 to plaintiffs' last known addresses, which some of them did not receive since these addresses were not correct. This was the first notice that plaintiffs received of the sale. Fred, as the president of Parklex Corporation, allegedly wire transfered $23,080,351.63 to FAL Associates LLC, an entity owned by him.

Consequently, plaintiffs commenced this action as against Parklex, Fred, Arie, Parklex Corporation, Marcum, SS&G, Penny, Joshua, Segal, Graff, Morgan, Collateral Corporation, Collateral Acquisition, and many other entities. Plaintiffs' second amended complaint is brought by them as a derivative action on behalf of Parklex, and also by them, individually, as limited partners. It asserts 30 causes of action, including claims for breach of fiduciary duty, breach of contract, negligence, an accounting, and conversion. SS&G and Marcum, by separate motions, seek dismissal of the causes of action asserted as against them in plaintiffs' second amended complaint.

SS&G, in their motion, seek dismissal of plaintiffs' eleventh cause of action for legal malpractice as against it, plaintiffs' sixth cause of action for breach of fiduciary duty as against it, plaintiffs' eighteenth cause of action for aiding and abetting a breach of fiduciary duty as against it and Graff, and plaintiffs' twenty-ninth cause of action as against Segal for misconduct by an attorney pursuant to Judiciary Law § 487.

In support of this motion with respect to plaintiffs' legal malpractice cause of action, SS&G asserts that plaintiffs never had privity with it and, therefore, lack standing to assert this claim. Such assertion, however, is rendered moot by the amendment of plaintiffs' complaint, which alleges a derivative claim on behalf of Parklex (see Partnership Law § 115-a).

SS&G also argues that plaintiffs have not alleged the requisite elements to support a legal malpractice claim, to wit, that SS&G failed to exercise the care, skill, and due diligence commonly possessed and exercised by a member of the legal profession, and that but for its alleged malpractice, Parklex would not have been damaged. Contrary to this argument, however, plaintiffs allege, in their claim, that SS&G breached its professional duty to Parklex when it failed to disclose to them that Fred allegedly refinanced the wrap, that the premises were to be sold in May 2006 without their consent, that there were loans issued by Parklex in March 2006, and that there was an IRC § 1031 tax exchange transaction. Plaintiffs assert that due to SS&G's breach of its professional duty, Fred was paid $32 million to the detriment of Parklex, causing damages to it.

In addition, plaintiffs' eleventh cause of action for legal malpractice alleges that SS&G had a conflict of interest in representing Fred and Arie in the purchase of Parklex Corporation from Ratner in 1991, and also representing Parklex. Specifically, it asserts that such conflict of interest existed when Fred alleged there was a default in the wrap and allegedly refinanced it; when the IRC § 1031 tax exchange was set up for Fred's best [*6]interests, not the best interests of Parklex; and when Graff, a partner in SS&G, became a vice-president for Collateral Corporation and Collateral Corporation entered into a loan agreement with Parklex.

While SS&G argues that plaintiffs affirmatively waived any conflict of interest due to joint representation because this was disclosed to them in the terms of the memorandum received and executed by each limited partner, this argument is rejected. The memorandum stated as follows:

"6. Lack of Separate Representation. The Partnership and the General Partner are not represented by separate counsel. In addition, the attorneys and other experts who perform services for the Partnership perform services for Affiliates of the General Partner. It is anticipated that such dual representation will continue in the future. However, should a dispute arise between the Partnership and the General Partner, or should a dispute arise between the Partnership and the General Partners, or should there be a necessity in the future to negotiate and prepare contracts and agreements between the Partnership and the General Partner other than those existing on the effective date of this Private Placement Memorandum, the General Partner may cause the Partnership to retain separate counsel" (emphasis supplied).

Thus, the language of the memorandum reflects that it pertained to the initial investment in the limited partnership, and it specifically provided that there might be a necessity in the future for the retention of separate counsel. Moreover, SS&G cannot rely upon a purported waiver of a conflict of interest where such a conflict could subject an attorney to disciplinary action based upon a violation of New York State's Disciplinary Rules and ethical standards (see generally Booth v Continental Ins. Co., 167 Misc 2d 429, 439 [1995]). The waiver of a conflict of interest by a client must be knowing and conscious; representation of multiple clients is only permissible "if each consents to the representation after full disclosure of the implications . . . and the advantages and risks involved". (DR 5-105 ( c ) (22 NYCRR § 1200.24 ( c ) (Emphasis added). The blanket caveat contained in the original memorandum could not have alerted plaintiffs to the circumstances at issue here so as to effect consent to the dual representation of clearly divergent interests. Consequently, dismissal of plaintiffs' eleventh cause of action is not warranted (see generally Gelfand v Oliver, 29 AD3d 736, 737 [2006]).

Plaintiffs' sixth cause of action alleges that SS&G had a fiduciary duty, as attorneys for Parklex, to counsel Parklex not to sell the Parklex premises without the consent, authorization, and or permission of the limited partners, as required by the Partnership Agreement, and to protect Parklex's assets, like the target property, from Fred's self-dealing. They allege that SS&G breached this fiduciary duty to Parklex when it was intimately involved in the sale of the Parklex premises and took no steps to ensure compliance with the partnership agreement, and when it was intimately involved in the transfer of the membership interests in 244 East LLC (which purchased the property [*7]under the IRC § 1031 exchange) from Parklex to Fred, causing Parklex damages.

SS&G argues that there is no fiduciary duty running from it to plaintiffs because they were never in privity with each other. However, as with plaintiffs' legal malpractice claim, the amendment of plaintiffs' complaint to assert this claim derivatively on behalf of Parklex renders this argument moot (see Partnership Law § 115-a). Thus, since SS&G owed a fiduciary duty to Parklex, dismissal of this cause of action must be denied.

Plaintiffs' eighteenth cause of action alleges that SS&G and Graff aided and abetted a breach of fiduciary duty by Fred and Arie. SS&G argues that this cause of action cannot be sustained because a person only aids and abets a breach of fiduciary duty "when he or she provides substantial assistance' to the primary violator" (Kaufman v Cohen, 307 AD2d 113, 126 [2003]). It is well settled that "[s]ubstantial assistance occurs when a defendant affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur" (id.). "[T]he mere inaction of the alleged aider and abetter constitute substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff" (id.).

SS&G argues that it owes no fiduciary duty directly to plaintiffs, and that plaintiffs have not alleged any affirmative actions on its part to assist or conceal any actions of any of the defendants alleged to be primary violators. It contends that plaintiffs, therefore, cannot sustain this claim based upon its mere inaction.

SS&G's argument is unavailing. Plaintiffs' complaint does not plead mere inaction, but, rather, knowing participation by SS&G in Fred's and Arie's breach of fiduciary duty to plaintiffs to avoid self-dealing. Plaintiffs specifically assert that SS&G represented Fred and Parklex Corporation prior to, during, and after the purchase of the shares of Parklex in 1991. Significantly, SS&G represented Parklex in the closing which created a mortgage held by Collateral Corporation on the Parklex premises, while partner Graff was the vice-president of Collateral Corporation, a clear direct conflict of interest. See DR 5-101 (22 NYCRR §1200.20 and DR 5-105 (D) (22NYCRR § 1200.24 (D)). SS&G also represented Parklex on the closing of the sale of the Parklex premises in May 2006, which was accomplished by Parklex Corporation without the approval or knowledge of plaintiffs. Thus, plaintiffs have sufficiently alleged that SS&G participated in the claimed breach of fiduciary duty (see Kew Gardens Hills Apt. Owners v Horing Welikson & Rosen, P.C., 35 AD3d 383, 386 [2006]; Aranki v Goldman & Associates, LLP, 34 AD3d 510, 512 [2006]).

SS&G also argues that its alleged participation in a breach of fiduciary duty has not been pleaded by plaintiffs with the detail required by CPLR 3016 (b). Such argument is without merit. Plaintiffs specifically allege SS&G's knowing participation in this breach sufficient to satisfy the pleading requirement of providing SS&G with notice as to the claim against it (see CPLR 3016 [b]). In addition, contrary to SS&G's argument, plaintiffs' breach of fiduciary claims are not duplicative of their legal malpractice claim (see Carmel v Lunney, 119 AD2d 50, 56 [1986], affd 70 NY2d 169 [1987]; Jones v [*8]Pricewaterhousecoopers, LLP, 6 Misc 3d 1014 [A], *3 [2004]).

Plaintiffs' twenty-ninth cause of action against Segal alleges misconduct by an attorney pursuant to Judiciary Law § 487, which permits a right of action against an attorney who "[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party." In order to demonstrate a cause of action under Judiciary Law § 487, a plaintiff must plead facts showing either deceitful conduct by the defendant which caused damage to the plaintiff or a chronic extreme pattern of legal delinquency (see Izko Sportswear Co. v Flaum, 25 AD3d 534, 537 [2006]). Where a plaintiff cannot make such a showing, a cause of action based upon alleged attorney misconduct pursuant to Judiciary Law § 487 must be dismissed (see Parks v Leahey & Johnson, P.C., 81 NY2d 161, 163-164 [1993]; Ulrich v Hausfeld, 269 AD2d 526, 526 [2000]; O'Connor v Dime Sav. Bank of NY, 265 AD2d 313, 314 [1999]; Mecca v Shang, 258 AD2d 569, 570 [1999]).

Here, plaintiffs allege that at a court conference held on June 29, 2006, Segal misled the court as to the true value of Parklex's assets and the location of the target property, and that he failed to disclose to the court that Fred had executed an assignment agreement transferring the membership rights in 244 East LLC, the title owner of the target property, from Parklex to himself. Such serious allegations, however, are not sufficiently supported to sustain this claim. Segal points out, in his affidavit, that he did, in fact, disclose a five million dollar note payable to Parklex, and that he merely did not provide the exact address of the property, but generally stated that it was in Manhattan. Segal also attests that he informed the court that the IRC § 1031 exchange was "distributed out." Thus, since this cause of action is not supported by allegations of deceit sufficient to state a cause of action to recover damages, it must be dismissed (see Mecca, 258 AD2d at 570).

Marcum, in support of its motion, seeks dismissal of plaintiffs' eighth, ninth, and tenth causes of action, which assert claims for negligence, breach of contract, and accountant malpractice, respectively, as against it. Plaintiffs allege that Marcum breached its professional duty to Parklex when it knowingly failed to provide Parklex with full, complete, and accurate tax returns, causing it damages. Plaintiffs further allege that they were the intended third-party beneficiaries of Parklex's retention of Marcum, and that Marcum breached its duty to them, as limited partners, when it failed to provide them with copies of their K-1 tax statements from 1998 through 2005. Plaintiffs assert that this resulted in their inability to accurately report the tax implications and consequences of their limited partnership interests in Parklex to the Internal Revenue Service and the appropriate State agencies. Plaintiffs also assert that but for Marcum's failure to issue the K-1 tax statements to them, they would have known about the alleged refinance of the wrap by Fred.

Marcum argues that insofar as plaintiffs' complaint asserts a derivative claim on behalf of Parklex against it, it cannot be sustained due to plaintiffs' failure to comply with [*9]Partnership Law § 115-a (3), which requires a limited partner attempting to commence a derivative action to "set forth with particularity the efforts of the [limited partner] to secure the initiation of such action by the general partner or partners, or the reasons for not making such effort." Marcum's argument must be rejected. Plaintiffs have specifically set forth that any attempt by them to demand from Fred and Arie, who completely dominate and control Parklex, that they initiate an action against Marcum would be futile since it is their alleged malfeasance, breach of fiduciary duties, and self-dealing that an action against Parklex's accountants would uncover. Plaintiffs further assert that Marcum was used by Fred to hide Fred's breaches of fiduciary duties and that it participated in such malfeasance by the blurring of the corporate/partnership forms between Parklex and Fred's other companies. Thus, the court finds that plaintiffs have sufficiently demonstrated that a demand on the general partners would be futile (see Partnership Law § 115-a [3]).

Marcum also contends that plaintiffs, on behalf of Parklex, have not stated a claim for accountant malpractice. Such contention is without merit. Marcum had a professional duty to act in Parklex's best interests when it provided tax advice to Parklex, and when it drafted, computed, and completed Parklex's tax documents. As noted above, plaintiffs' complaint specifically alleges that Marcum failed to provide Parklex with full, complete, and accurate tax returns, and it is undisputed that tax returns from December 31, 1995 through December 31, 2005 were not filed with the Internal Revenue Service. Plaintiffs claim that tax returns were either not filed or were filed containing fraudulent information. While Marcum denies this, and claims that plaintiffs have not shown how any tax documents were inaccurate, plaintiffs, at this juncture, cannot be expected to make such a showing without an accounting and without the tax documents being in their possession.

In the context of a motion to dismiss, plaintiffs' allegations must be deemed true and afforded every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Mecca, 258 AD2d at 570). The tax returns for Parklex are challenged as being inaccurate and causally linked to plaintiffs' alleged losses (compare Leigh Mgt. Assocs. v Weinstein, 251 AD2d 225, 226 [1998]). The information relevant to Parklex's tax returns and the preparation of the K-1 tax statements is solely in Marcum's hands (see Ackerman v Price Waterhouse, 252 AD2d 179, 200 [1998]).

Marcum additionally contends that plaintiffs' claims against it cannot be sustained because the damages claimed in their complaint are all personal in nature to the limited partners and are not suffered by Parklex as an entity, with whom it is in direct privity. This contention is devoid of merit. As previously stated, plaintiffs assert that Parklex has been damaged due to the breach of duty by Marcum to provide it with full, complete, and accurate tax returns. Furthermore, plaintiffs assert that Marcum billed Parklex for work performed not only on behalf of Parklex, but also for work performed for Management and 61st Street Associates, two companies that received millions of dollars from Parklex [*10]and which are controlled, dominated, and managed by Fred, and performed no known services for Parklex.

Moreover, Marcum's argument that plaintiffs cannot assert their claims against it, as individual limited partners, due to a lack of privity between them and it, is rejected. "The accountant for a limited partnership may be held directly liable to the limited partners" (Caprer v Nussbaum, 36 AD3d 176, 198 [2006], citing White v Guarente, 43 NY2d 356, 361-362 [1977]). Indeed, the Court of Appeals has specifically rejected the argument that an accountant's liability is limited to the partnership with whom he had contracted (White, 43 NY2d at 363; see also Caprer, 36 AD3d at 198).

Here, it is not disputed that Marcum was engaged by Parklex for the specific purpose of preparing the partnership returns, including the Schedules K-1, for use by the limited partners in preparing their own individual tax returns (see Ackerman, 252 AD2d at 199). Thus, the services of Marcum were not extended to the public at large or a "faceless or unresolved class of persons," but, rather, to actual limited partners (White, 43 NY2d at 361). Therefore, Marcum assumed the task of preparing the tax returns for the benefit of the limited partners (see White, 43 NY2d at 361-362). Marcum was aware that a limited partner needed and would necessarily rely on the tax returns of the partnership in order to properly prepare his or her own tax returns (see White, 43 NY2d at 361; Ackeman, 252 AD2d at 200). Such awareness is demonstrated by Marcum's transmittal letters to Parklex, directing Parklex to distribute the tax returns to each limited partner (see Ackerman, 252 AD2d at 200). Plaintiffs allege that Marcum was on notice from Rosen in 2002 that they were not receiving the benefits of the tax preparation and accounting services.

Marcum also contends that plaintiffs' claims are barred by a three-year Statute of Limitations because they refer to its failures to provide tax returns prior to July 26, 2003. Such contention lacks merit. Plaintiffs have adequately alleged that during Marcum's continuous services as the accountant for Parklex, it continued its prior course of conduct in not providing them with their K-1 tax statements during the period subsequent to July 26, 2003. Plaintiffs' claims for malpractice cannot be time-barred as to those acts that allegedly occurred for the tax years three years or less from the inception of this action (see Carella v Scholet, 5 AD3d 972, 975 [2004]).

Thus, dismissal of plaintiffs' tenth cause of action for accountant malpractice must be denied. With respect to the eighth and ninth causes of action, however, it has been held that a cause of action for breach of contract or negligence is duplicative of a malpractice cause of action since it arises from the same set of facts (see Gelfand, 29 AD3d at 737; Zorn v Gilbert, 27 AD3d 731, 731 [2006]; Penner v Hoffberg Oberfest Burger & Berger, 303 AD2d 249, 249 [2003]; Nevelson v Carro, Spanbock, Kaster & Cuiffo, 290 AD2d 399, 400 [2002]; Davison v Margolin Winer & Evens LLP, 14 Misc 3d 1240 [A], 2007 WL 703108, *5 [2007]). Therefore, the breach of contract and negligence claims as against Marcum must be dismissed as duplicative of plaintiffs' [*11]malpractice claim.

Accordingly, SS&G's motion to dismiss is granted to the extent that it seeks dismissal of the twenty-ninth cause of action as against Segal, and is denied in all other respects. Marcum's motion to dismiss is granted with respect to plaintiffs' eighth and ninth causes of action, and is denied with respect to plaintiffs' tenth cause of action as against it.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.