| Sheroff v Dreyfus Corp. |
| 2008 NY Slip Op 03439 [50 AD3d 877] |
| April 15, 2008 |
| Appellate Division, Second Department |
| Leslie B. Sheroff, Appellant, v Dreyfus Corporation, DoingBusiness as Dreyfus Family of Funds, Respondent. |
—[*1] Lazare Potter Giacovas & Kranjac LLP, New York, N.Y. (Robert A. Giacovas and RonaldSingh of counsel), for respondent.
In an action, inter alia, to recover damages for aiding and abetting the breach of a fiduciaryduty, the plaintiff appeals, as limited by her brief, from so much of an order of the SupremeCourt, Nassau County (Warshawsky, J.), dated June 4, 2007, as granted those branches of thedefendant's motion which were to dismiss the first, second, third, and fourth causes of actionpursuant to CPLR 3211 (a) (7).
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the defendant's motion which were to dismiss the second and fourth causes ofaction and substituting therefor provisions denying those branches of the motion; as so modified,the order is affirmed insofar as appealed from, without costs or disbursements.
A motion to dismiss pursuant to CPLR 3211 (a) (7) will fail if, taking all facts alleged as trueand according them every possible inference favorable to the plaintiff, "the complaint states insome recognizable form any cause of action known to our law" (Shaya B. Pac., LLC v Wilson, Elser,Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]; see AG Capital Funding Partners, L.P. vState St. Bank & Trust Co., 5 NY3d 582, 591 [2005]; Leon v Martinez, 84NY2d 83, 87-88 [1994]). "[A]ffidavits may be used freely to preserve inartfully pleaded, butpotentially meritorious, claims" (Rovello v Orofino Realty Co., 40 NY2d 633, 635[1976]).[*2]
The plaintiff's complaint, as amplified by the affidavit shesubmitted in opposition to the defendant's motion, inter alia, to dismiss the complaint pursuant toCPLR 3211 (a) (7), adequately stated causes of action alleging aiding and abetting the breach of afiduciary duty (second cause of action) and aiding and abetting conversion (fourth cause ofaction) (see Kaufman v Cohen, 307 AD2d 113, 125 [2003]; Dangerfield v MerrillLynch, Pierce, Fenner & Smith, Inc., 2006 WL 335357 [SD NY 2006]; cf. NorwestMtge. v Dime Sav. Bank of N.Y., 280 AD2d 653 [2001]). However, we agree with theSupreme Court that the plaintiff failed to state causes of action alleging breach of fiduciary duty(first cause of action) and scheme to defraud (third cause of action).
To the extent that the plaintiff raises issues regarding that branch of the defendant's motionwhich was pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred, we note thatsuch issues are not properly before us (see Katz v Katz, 68 AD2d 536, 542-543 [1979]).Fisher, J.P., Miller, Carni and Dickerson, JJ., concur.