| United States Fire Ins. Co. v Raia |
| 2012 NY Slip Op 02482 [94 AD3d 749] |
| April 3, 2012 |
| Appellate Division, Second Department |
| United States Fire Insurance Company, on Its Own Behalf and asSubrogee/Assignee of Andrea Spagnoletti, an Incapacitated Person, Appellant, v CamilleA. Raia et al., Defendants, and Jerome M. Karp, Respondent. |
—[*1] Furman Kornfeld & Brennan, LLP, New York, N.Y. (A. Michael Furman of counsel), forrespondent.
In an action, inter alia, to recover damages for legal malpractice and breach of fiduciary duty,the plaintiff appeals from an order of the Supreme Court, Kings County (Schack, J.), dated July12, 2010, which granted that branch of the motion of the defendant Jerome M. Karp which waspursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against him.
Ordered that the order is affirmed, with costs.
United States Fire Insurance Company (hereinafter U.S. Fire) commenced this action on itsown behalf and as subrogee/assignee of Andrea S., an incapacitated person (hereinafter the IP).In its complaint, U.S. Fire alleged that the defendant Camille A. Raia was appointed guardian ofthe IP's property and obtained a guardianship bond through U.S. Fire, as surety. The complaintfurther alleged that Raia was removed as the guardian of the IP's property as a result of a criminalinvestigation ultimately resulting, upon stipulation, in a surcharge to the guardianship bond, andan assignment of all rights and causes of action to U.S. Fire in exchange for a payment thereon.
Thereafter, U.S. Fire commenced this action, inter alia, to recover damages for legalmalpractice and breach of fiduciary duty from the defendant Jerome M. Karp, who had beenappointed as a court examiner pursuant to Mental Hygiene Law article 81. In essence, thecomplaint alleged that Karp failed to discover Raia's defalcation in a timely manner. Karp movedpursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as asserted against him,and U.S. Fire opposed the motion. The Supreme Court granted that branch of Karp's motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted againsthim. U.S. Fire appeals. We affirm.
"On a motion to dismiss for failure to state a cause of action pursuant to CPLR [*2]3211 (a) (7), 'the sole criterion is whether the pleading states acause of action, and if from its four corners factual allegations are discerned which taken togethermanifest any cause of action cognizable at law[,] a motion for dismissal will fail' " (Kopelowitz & Co., Inc. v Mann, 83AD3d 793, 796 [2011], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275[1977]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
The Supreme Court properly granted that branch of Karp's motion which was to dismiss thecause of action to recover damages for legal malpractice insofar as asserted against him. "Toestablish a cause of action alleging legal malpractice, a plaintiff must prove, inter alia, theexistence of an attorney-client relationship" (Nelson v Roth, 69 AD3d 912, 913 [2010]; see Terio v Spodek, 63 AD3d 719,721 [2009]; Velasquez v Katz, 42AD3d 566, 567 [2007]). "[A]bsent fraud, collusion, malicious acts, or other specialcircumstances, an attorney is not liable to third parties, not in privity, for harm caused byprofessional negligence" (Rovello v Klein, 304 AD2d 638, 638 [2003]; see Ginsburg Dev. Cos., LLC vCarbone, 85 AD3d 1110, 1111-1112 [2011]; Aranki v Goldman & Assoc., LLP, 34 AD3d 510, 511-512 [2006]).Here, the complaint fails to allege the existence of an attorney-client relationship between Karp,on the one hand, and the IP or U.S. Fire, on the other hand (see Nelson v Roth, 69 AD3dat 913; Rovello v Klein, 304 AD2d at 638-639).
The Supreme Court properly granted that branch of Karp's motion which was to dismiss thecause of action to recover damages for breach of fiduciary duty insofar as asserted against him.To state a cause of action to recover damages for breach of fiduciary duty, a plaintiff must allege:"(1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damagesdirectly caused by the defendant's misconduct" (Rut v Young Adult Inst., Inc., 74 AD3d 776, 777 [2010]; see Kurtzman v Bergstol, 40 AD3d588, 590 [2007]). A breach of fiduciary duty cause of action must be pleaded with theparticularity required by CPLR 3016 (b) (see Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83 AD3d804, 808 [2011]; Chiu v Man ChoiChiu, 71 AD3d 621, 623 [2010]). Here, although the complaint alleged that Karp owedstatutory and fiduciary duties to the IP and U.S. Fire, "[o]n a motion to dismiss a complaintpursuant [to] CPLR 3211 (a) (7), 'bare legal conclusions are not presumed to be true' "(Kopelowitz & Co., Inc. v Mann, 83 AD3d at 798, quoting Kupersmith v Winged Foot Golf Club,Inc., 38 AD3d 847, 848 [2007]). The complaint did not allege facts that would give riseto a fiduciary relationship between Karp, on the one hand, and the IP or U.S. Fire, on the otherhand (see Refreshment Mgt. Servs.,Corp. v Complete Off. Supply Warehouse Corp., 89 AD3d 913 [2011]; Baer v Complete Off. Supply WarehouseCorp., 89 AD3d 877 [2011]; Kopelowitz & Co., Inc. v Mann, 83 AD3d at797-798).
U.S. Fire's remaining contentions are without merit. Balkin, J.P., Dickerson, Belen andCohen, JJ., concur.