| Union State Bank v Weiss |
| 2009 NY Slip Op 06175 [65 AD3d 584] |
| August 11, 2009 |
| Appellate Division, Second Department |
| Union State Bank, Appellant, v Gretchen H. Weiss,Respondent. |
—[*1] Kantor, Davidoff, Wolfe, Mandelker, Twomey & Gallanty, P.C., New York, N.Y. (Allan T.Gallanty and Gary Hoppe of counsel), for respondent.
In an action, inter alia, to recover on a series of guarantees and to recover damages forbreach of fiduciary duty, negligent misrepresentation, and fraud, the plaintiff appeals, as limitedby its brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.),dated April 25, 2008, as granted those branches of the defendant's motion which were pursuantto CPLR 3211 (a) (7) to dismiss the second, third, and fourth causes of action of the amendedcomplaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the defendant's motion which were to dismiss the second, third, and fourth causes ofaction of the amended complaint are denied.
The plaintiff originally served a complaint setting forth two causes of action, and thedefendant Gretchen H. Weiss in her capacity as executor of the estate of Stephen E. Weiss, andindividually, moved to dismiss that complaint. While the motion was pending, the plaintiffserved an amended complaint as of right (see CPLR 3025 [a]; 3211 [f]), adding causes ofaction alleging breach of fiduciary duty, negligent misrepresentation, and fraud. The defendantthereafter submitted additional papers on the motion, seeking the dismissal of the amendedcomplaint, and the plaintiff responded to those papers. The Supreme Court granted thosebranches of the defendant's motion which were to dismiss the causes of action in the amendedcomplaint alleging breach of fiduciary duty, negligent misrepresentation, and fraud. We reverse.
On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court's function is to determinewhether the plaintiff's factual allegations fit within any cognizable legal theory (see Nonnon v City of New York, 9NY3d 825, 827 [2007]), without regard to whether those allegations ultimately can beestablished (see EBC I, Inc. v Goldman,Sachs & Co., 5 NY3d 11, 19 [2005]; Aberbach v Biomedical Tissue Servs., Ltd., 48 AD3d 716,717-718 [2008]). Viewing the amended complaint in the light most favorable to the plaintiff, andassuming that the factual allegations contained therein are true for the purposes of the motion(see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Kaplon-Belo Assoc., Inc. v D'Angelo, 57 AD3d 948 [2008]; Heffez v L & G Gen. [*2]Constr., Inc., 56 AD3d 526 [2008]), the amendedcomplaint adequately states causes of action sounding in breach of fiduciary duty, negligentmisrepresentation, and fraud against the defendant individually. In addition, those causes ofaction are distinct from the plaintiff's cause of action against the estate of the defendant's latehusband to recover on a series of guarantees.
The defendant's contention that the three causes of action at issue fail to comply with thepleading requirements of CPLR 3016 (b) is without merit, as those causes of action are sufficientto advise the defendant of the incidents complained of (see Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491[2008]).
The defendant's remaining contentions are without merit. Mastro, J.P., Fisher, Eng and Hall,JJ., concur.