| Putter v Putter |
| 2011 NY Slip Op 00498 [80 AD3d 742] |
| January 25, 2011 |
| Appellate Division, Second Department |
| Marvin Putter et al., Respondents, v Bernard Putter et al.,Defendants, and Lloyd Putter, Appellant. |
—[*1] Robert B. Marcus, P.C., New City, N.Y., for respondents.
In an action, inter alia, to recover damages for breach of fiduciary duty, the defendant LloydPutter appeals from so much of an order of the Supreme Court, Rockland County (Nelson, J.),dated December 8, 2009, as denied those branches of his cross motion pursuant to CPLR 3211(a) (7) which were to dismiss the first, second, third, fourth, sixth, seventh, and eighth causes ofaction insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
"On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, the court must afford the pleading a liberal construction, accept all facts asalleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory" (Gateway I Group, Inc. v Park Ave.Physicians, P.C., 62 AD3d 141, 145 [2009] [internal quotation marks omitted]; seeLeon v Martinez, 84 NY2d 83, 87 [1994]). Contrary to the appellant's contention, thecomplaint states causes of action alleging breach of fiduciary duty, conversion, unjustenrichment, money had and received, and the imposition of a constructive trust (see generally Arfa v Zamir, 75 AD3d443 [2010]; Castaldi v 39 WinfieldAssoc., 30 AD3d 458 [2006]; Clark v Daby, 300 AD2d 732 [2002]; Matterof Witbeck, 245 AD2d 848, 850-851 [1997]). Accordingly, the Supreme Court properlydenied those branches of the appellant's cross motion pursuant to CPLR 3211 (a) (7) which wereto dismiss the first, second, third, fourth, sixth, seventh, and eighth causes of action insofar asasserted against him. Mastro, J.P., Chambers, Roman and Cohen, JJ., concur.