When a business that makes sales to the public, and collects sales tax is sold, the buyer may become liable for unpaid sales taxes of the seller.  There is a well-understood process by which the buyer can immunize himself.  Really, all it takes is following the rules.  Unfortunately, in Randazzo v Nelson  2015 NY Slip Op 04299  Decided on May 20, 2015  Appellate Division, Second Department the rules were not followed.

How does plaintiff defend against the CPLR 3211(a)(1) motion?  By showing that the documents submitted do not utterly refute the allegations of the complaint.  “Here, the complaint, as amplified by the affidavit of Richard Randazzo (see Leon v Martinez, 84 NY2d at 88), alleges that the defendant breached his duty of care, inter alia, by failing to ensure that certain tax liabilities of the seller did not attach to the plaintiffs’ successor delicatessen pursuant to Tax Law § 1141(c). It alleges that the defendant, inter alia, failed to await the final determination of the seller’s tax liabilities by the Department, and a notice by the Department that such tax liabilities had been wholly paid or satisfied, or no longer existed, before releasing the purchase funds to the seller. As a result, the outstanding tax liabilities of the seller attached to the plaintiffs, forcing them to close down the business.”

“Further, the documents submitted by the defendant did not conclusively establish a defense as a matter of law (see Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d at 589). Contrary to the defendant’s contention, in the absence of evidence that the plaintiffs were made whole in their separate action against the seller pursuant to the indemnification agreement executed at the closing, such indemnification is no defense to the plaintiffs’ claim that had they been properly advised, the tax assessment would have been obviated entirely (see Yiouti Rest. v Sotiriou, 151 AD2d at 745).”