Le Cafe Creme, Ltd. v. Schoenfeld ( 1997 )

—In an action to recover damages for accounting malpractice, the defendants appeal from so much of an order of the Supreme Court, Nassau County (DeMaro, J.), dated December 3, 1996, as (1) granted the plaintiffs’ motion for partial summary judgment on the issue of liability and (2) denied their cross motion for summary judgment on their counterclaims for accounting fees.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiffs’ motion for partial summary judgment was properly granted. The defendant Harvey Mendelsohn knew at the time that he prepared the plaintiffs’ 1989 tax returns that the election of the plaintiff Le Cafe Creme, Ltd., to be taxed as a small business corporation under subchapter S of the Internal Revenue Code had not been made within the time limit specified by law.

The defendants’ cross motion for summary judgment on their counterclaims for accounting fees was properly denied. There exist triable issues of fact (see, CPLR 3212 [b]) as to the amount, if any, which the plaintiffs owe the defendants for accounting services rendered. Mangano, P. J., Copertino, Joy and Florio, JJ., concur.