| Rut v Young Adult Inst., Inc. |
| 2010 NY Slip Op 04764 [74 AD3d 776] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Kathleen Rut, Appellant, v Young Adult Institute, Inc., etal., Respondents. |
—[*1] Senerchia & Kelly, P.C., White Plains, N.Y. (John B. F. Kelly of counsel), forrespondents.
In an action to recover damages for breach of contract and breach of fiduciary duty, theplaintiff appeals from an order of the Supreme Court, Nassau County (Feinman, J.), datedDecember 10, 2008, which granted the defendants' motion to dismiss the complaint pursuant toCPLR 3211.
Ordered that the order is affirmed, with costs.
The plaintiff's husband, an employee of the defendant Young Adult Institute, Inc.(hereinafter YAI), for more than 25 years, died in 2006 while still employed by YAI. At thattime, the plaintiff became the successor beneficiary of her husband's retirement and employeebenefit plans. One of those plans, the Supplemental Pension Plan and Trust for CertainManagement Employees of YAI (hereinafter the Plan) provided a monthly income payment tothe beneficiary for life. The plaintiff asserts in her complaint that after her husband's death, thedefendant Joel M. Levy, the chief executive officer of YAI, orally offered to make anunspecified lump sum payment to her in lieu of the monthly payments that she was entitled tounder the Plan. The complaint further alleges that, after negotiations, YAI agreed to pay theplaintiff her benefits in the form of an annuity. On or about December 28, 2007, the plaintiffreceived a proposed release, which she signed, after unilaterally adding additional terms to therelease that required, inter alia, that a commercial insurance product be purchased at YAI'sexpense to fund the annuity. This additional term was rejected by YAI.
When YAI failed to purchase a commercial insurance product to fund the annuity, theplaintiff commenced this action against the defendants alleging that (1) although she released herclaims against YAI in exchange for the protection afforded by the purchase of a commercialinsurance product to fund the annuity, no annuity was purchased, (2) the defendants wererequired to make a lump sum payment to her in excess of $3,000,000 by virtue of an oralpromise make by Joel M. Levy, the chief executive officer of YAI, and (3) the defendants JoelM. Levy and Philip Levy, as trustees of the YAI retirement plan, breached a fiduciary duty owedto her by failing to purchase a commercial insurance product to fund the plan.[*2]
The defendants moved to dismiss the complaint pursuantto CPLR 3211. The Supreme Court granted the motion, and we affirm.
Accepting the allegations of the complaint as true, the allegations do not indicate anymeeting of the minds with respect to the material terms of the alleged promise to pay the plaintiffa lump sum or to purchase a commercial annuity. Therefore, the plaintiff failed to state a causeof action sounding in breach of contract.
The elements of a cause of action to recover damages for breach of fiduciary duty are (1) theexistence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directlycaused by the defendant's misconduct (see Kurtzman v Bergstol, 40 AD3d 588, 590 [2007]). The plaintiffdid not allege any misconduct by the defendants that caused her to sustain damages. Therefore,she did not state a cause of action sounding in breach of fiduciary duty.
The plaintiff's remaining contentions are without merit, or need not be addressed in light ofour determination. Fisher, J.P., Balkin, Roman and Sgroi, JJ., concur.