| Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav.Bank |
| 2011 NY Slip Op 06829 [87 AD3d 1118] |
| September 27, 2011 |
| Appellate Division, Second Department |
| Putnam County Temple & Jewish Center, Inc.,Appellant, v Rhinebeck Savings Bank et al., Respondents. |
—[*1] Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Roseann Schuyler and LisaL. Shrewsberry of counsel), and The Dorf Law Firm, LLP, Mamaroneck, N.Y. (Jonathan B.Nelson of counsel), for respondent Rhinebeck Savings Bank (one brief filed). Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Richard E. Lerner,Leanne Carvino, and Thomas W. Hyland of counsel), for respondents Levine & Levine, P.C., andRobert S. Levine.
In an action, inter alia, to recover damages for legal malpractice, fraud, and breach offiduciary duty, and violation of Judiciary Law § 487, and for a judgment declaring certainmortgages invalid, the plaintiff appeals (1) from an order of the Supreme Court, Putnam County(Nicolai, J.), dated August 2, 2010, which granted the motion of the defendants Levine & Levine,P.C., Robert S. Levine, and Robert Apple pursuant to CPLR 3211 (a) to dismiss the complaintinsofar as asserted against them, and (2) from an order of the same court dated August 6, 2010,which granted the motion of the defendant Rhinebeck Savings Bank pursuant to CPLR 3211 (a)to dismiss the complaint insofar as asserted against it. By decision and order on motion of thisCourt dated February 8, 2011, the respondent Robert Apple was severed from the appeals.
Ordered that the order dated August 2, 2010, is modified, on the law, (1) by deleting theprovision thereof granting those branches of the motion of the defendants Levine & Levine, P.C.,Robert S. Levine, and Robert Apple which were pursuant to CPLR 3211 (a) to dismiss theseventh and eighth causes of action to recover damages for fraud and legal malpractice,respectively, insofar as asserted against the defendants Levine & Levine, P.C., and Robert S.Levine, and substituting therefor a provision denying those branches of the motion, and (2) bydeleting the provision thereof granting that branch of the motion of the defendants Levine &Levine, P.C., Robert S. Levine, and Robert Apple which was pursuant to CPLR 3211 (a) todismiss the sixth cause of action to recover damages for violation of Judiciary Law § 487insofar as asserted against the defendants Levine & Levine, P.C., and Robert S. Levine, andsubstituting therefor a provision [*2]granting that branch of themotion with leave to the plaintiff to replead the allegations in an amended complaint; as somodified, the order dated August 2, 2010, is affirmed insofar as reviewed with respect to therespondents Rhinebeck Savings Bank, Levine & Levine, P.C., and Robert S. Levine; and it isfurther,
Ordered that the order dated August 6, 2010, is modified, on the law, by deleting theprovision thereof granting those branches of the motion of the defendant Rhinebeck SavingsBank which were pursuant to CPLR 3211 (a) to dismiss the first, second, and ninth causes ofaction to recover damages for violation of Religious Corporations Law § 12 andNot-For-Profit Corporation Law § 511, for a judgment declaring certain mortgages invalid,and to recover damages for breach of contract, respectively, and substituting therefor a provisiondenying those branches of the motion; as so modified, the order dated August 6, 2010 isaffirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff, payable by the defendants appearingseparately and filing separate briefs.
The plaintiff, Putnam County Temple & Jewish Center, Inc. (hereinafter the temple), ownscertain real property (hereinafter the Brewster property) in Brewster, New York. The defendantRhinebeck Savings Bank (hereinafter the bank) loaned certain funds to the temple, and claims tohold several mortgages on the Brewster property. The defendants Levine & Levine, P.C., andRobert S. Levine (hereinafter together the attorneys) represented both the temple and the bank inconnection with the financing. In 2010 the temple commenced this action against, among others,the bank and the attorneys, inter alia, to recover damages for legal malpractice, fraud, breach offiduciary duty, and violation of Judiciary Law § 487 on the part of the attorneys, and for ajudgment declaring the subject mortgages invalid. Additionally, in two causes of action assertedagainst the bank, the temple alleged that any mortgages purportedly held by the bank wereinvalid because the requirements of Religious Corporations Law § 12 and Not-For-ProfitCorporation Law § 511, which govern the mortgaging of real property owned by religiouscorporations, had not been satisfied.
The attorneys, along with the defendant Robert Apple, moved pursuant to CPLR 3211 (a) todismiss the complaint insofar as asserted against them. The bank also moved pursuant to CPLR3211 (a) to dismiss the complaint insofar as asserted against it. In the orders appealed from, theSupreme Court granted the motions. To the extent reviewed on these appeals, we modify.
The Supreme Court held that the attorneys were entitled to dismissal of the eighth cause ofaction to recover damages for legal malpractice insofar as asserted against them on the groundsthat the applicable statutes of limitations had run, the attorneys had presented documentaryevidence that conclusively disposed of the temple's claims, and the temple failed to state a causeof action. We disagree. Based upon the allegations in the complaint and the documentaryevidence presented, it cannot be determined at this juncture whether the continuousrepresentation doctrine tolls the three-year statute of limitations for attorney malpractice underthe circumstances (see Kanter vPieri, 11 AD3d 912, 913-914 [2004]). Moreover, the temple properly alleged all of theelements necessary to recover damages for legal malpractice. Accordingly, the Supreme Courterred in holding that the eighth cause of action to recover damages for legal malpractice shouldbe dismissed insofar as asserted against the attorneys.
However, the Supreme Court properly held that the third cause of action to recover damagesfor breach of fiduciary duty should be dismissed insofar as asserted against the attorneys, as thebreach of fiduciary duty allegations are essentially duplicative of the legal malpractice allegations(see Kvetnaya v Tylo, 49 AD3d608, 609 [2008]; TVGA Eng'g,Surveying, P.C. v Gallick, 45 AD3d 1252, 1256 [2007]; Weil, Gotshal & Manges, LLP v FashionBoutique of Short Hills, Inc., 10 AD3d 267, 271 [2004]).
The Supreme Court further erred in holding that the seventh cause of action to recoverdamages for fraud should be dismissed insofar as asserted against the attorneys. Contrary to theattorneys' contention, that cause of action was pleaded with sufficient specificity (seeCPLR [*3]3016 [b]; Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492 [2008];PDK Labs v Krape, 277 AD2d 211 [2000]), and the attorneys' documentary evidencefailed to "resolve[ ] all factual issues as a matter of law, and conclusively dispose[ ] of theplaintiff's claim" (Brunot v Eisenberger & Co., 266 AD2d 421 [1999]; see CPLR3211 [a] [1]). However, in its current form, the sixth cause of action alleging a violation ofJudiciary Law § 487 lacks the required specificity (see Mars v Grant, 36 AD3d 561 [2007]; Briarpatch Ltd., L.P. v Frankfurt GarbusKlein & Selz, P.C., 13 AD3d 296, 297-298 [2004]), and, under the circumstances of thiscase, we modify the order dated August 2, 2010, to grant that branch of the motion which waspursuant to CPLR 3211 (a) to dismiss the sixth cause of action insofar as asserted against theattorneys with leave to the temple to replead the allegations in an amended complaint.
Additionally, the issue of whether the bank holds valid mortgages on the temple's propertycannot be determined on the bank's motion to dismiss. The documentary evidence indicates thatcertain requirements of Religious Corporations Law § 12 (1) and Not-For-ProfitCorporation Law § 511 may not have been satisfied (see Church of God of ProspectPlaza v Fourth Church of Christ, Scientist, of Brooklyn, 54 NY2d 742, 743-744 [1981];Bernstein v Friedlander, 58 Misc 2d 492, 495 [1968]; see also Matter of Prospect Hgts. Hous. Dev. Fund Corp., 38 AD3d781, 782 [2007]), and, contrary to the bank's contention, the temple is not collaterallyestopped from alleging that the mortgages are invalid. However, a question remains as to whetherthe temple is judicially estopped from contesting the mortgages' validity (see Hinman, Straub,Pigors & Manning v Broder, 124 AD2d 392, 393 [1986]; Environmental Concern vLarchwood Constr. Corp., 101 AD2d 591, 593 [1984]). Accordingly, the Supreme Courterred in granting those branches of the bank's motion which were pursuant to CPLR 3211 (a) todismiss the first and second causes of action in the complaint to recover damages for violation ofReligious Corporations Law § 12 and Not-For-Profit Corporation Law § 511, andfor a judgment declaring the subject mortgages invalid, respectively, insofar as asserted againstthe bank.
The Supreme Court also erred in holding that the ninth cause of action to recover damagesfor breach of contract against the bank should be dismissed for failure to state a cause of action.The bank did not seek dismissal of that cause of action on that ground, nor was such reliefwarranted based on the allegations in the complaint (see e.g. Matter of Myers v Markey, 74 AD3d 1344, 1345 [2010]).
The parties' remaining contentions either are without merit or need not be addressed in lightof the foregoing determination. Mastro, J.P., Balkin, Chambers and Lott, JJ., concur.