WELLS, MARK D. v. THE HURLBURT ROAD COMPANY, LLC ( 2016 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1057
    CA 16-00344
    PRESENT: CARNI, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
    MARK D. WELLS, PLAINTIFF-APPELLANT,
    V                             MEMORANDUM AND ORDER
    THE HURLBURT ROAD COMPANY, LLC, ANTHONY
    CILIBERTI AND ANN G. KLEIN, TRUSTEES OF THE
    ANN G. KLEIN MARITAL TRUST, RICHARD M. KLEIN,
    NANCY L. KLEIN, LAURIE KLEIN-COLETTI AND
    RICHARD W. COOK, TRUSTEES OF THE HURLBURT
    TRUST, AND RICHARD W. COOK, TRUSTEE OF THE
    MANLIUS-KLEIN CHILDREN’S TRUST,
    DEFENDANTS-RESPONDENTS.
    LINDENFELD LAW FIRM, P.C., CAZENOVIA (JANA K. MCDONALD OF COUNSEL),
    FOR PLAINTIFF-APPELLANT.
    MENTER, RUDIN & TRIVELPIECE, P.C., SYRACUSE (JULIAN B. MODESTI OF
    COUNSEL), FOR DEFENDANTS-RESPONDENTS.
    Appeal from an order of the Supreme Court, Onondaga County
    (Deborah H. Karalunas, J.), entered May 19, 2015. The order, inter
    alia, granted defendants’ motion to dismiss plaintiff’s second cause
    of action.
    It is hereby ORDERED that the order so appealed from is
    unanimously modified on the law by denying the motion and reinstating
    the second cause of action, and as modified the order is affirmed
    without costs.
    Memorandum: Plaintiff commenced this action seeking, among other
    things, equitable relief pursuant to his second cause of action
    alleging a breach of trust or fiduciary duty on the part of Richard W.
    Cook (defendant) in his capacity as trustee of the Manlius-Klein
    Children’s Trust (trust), in which plaintiff has a 25% beneficial
    interest. Plaintiff appeals from an order that, inter alia, granted
    defendants’ CPLR 3211 (a) (7) motion to dismiss the second cause of
    action and denied that part of plaintiff’s cross motion seeking to
    alter the priority in conducting depositions.
    We agree with plaintiff that Supreme Court erred in granting
    defendants’ motion. In considering a motion to dismiss pursuant to
    CPLR 3211, the court must accept the facts as alleged in the complaint
    as true, accord plaintiff the benefit of every favorable inference,
    and determine only whether the facts alleged fit within a cognizable
    -2-                          1057
    CA 16-00344
    legal theory (see Leon v Martinez, 84 NY2d 83, 87-88). Here, we
    conclude that plaintiff’s second cause of action sufficiently stated a
    claim against defendant for breach of fiduciary duty, namely, the duty
    to treat all beneficiaries of the trust impartially (see Redfield v
    Critchley, 252 App Div 568, 573, affd 277 NY 336, rearg denied 278 NY
    483; Matter of George Goldberg Irrevocable Trust, 
    159 Misc 2d 1107
    ,
    1108; see also Zim Israel Nav. Co. v 3-D Imports, Inc., 29 F Supp 2d
    186, 192). Plaintiff has adequately alleged the elements of a cause
    of action for breach of fiduciary duty, including the existence of a
    fiduciary relationship, misconduct by defendant, and damages directly
    caused by that misconduct (see Matter of Lorie DeHimer Irrevocable
    Trust, 122 AD3d 1352, 1352-1353; Rut v Young Adult Inst., Inc., 74
    AD3d 776, 777), and it cannot be determined as a matter of law that
    the loan transaction engaged in by defendant treated all of the
    beneficiaries equally (see generally Leon, 84 NY2d at 87-88). We
    modify the order accordingly.
    Contrary to plaintiff’s contention, the court did not abuse its
    discretion in denying that part of his cross motion seeking to alter
    the usual priority of depositions. There are no “ ‘special
    circumstances’ ” or other grounds in the record warranting such an
    alteration (Serio v Rhulen, 29 AD3d 1195, 1196-1197; see generally
    Kenna v New York Mut. Underwriters, 188 AD2d 586, 588).
    Entered:   December 23, 2016                    Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 16-00344

Judges: Carni, Dejoseph, Nemoyer, Troutman, Scudder

Filed Date: 12/23/2016

Precedential Status: Precedential

Modified Date: 11/1/2024