Demartino v. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP

189 A.D.3d 774

137 N.Y.S.3d 116

Franco A. DEMARTINO, appellant,

v.ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA & WOLF, LLP, et al., respondents.

2017–08411

Index No. 14174/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 22, 2020

December 2, 2020

Gail M. Blasie, P.C., Garden City, NY, for appellant.

Law Office of Steven Cohn, P.C., Carle Place, N.Y. (Peter Chatzinoff of counsel), for respondents.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of fiduciary duty and fraud, the plaintiff appeals from an order of the Supreme Court, Queens County (Marguerite A. Grays, J.), dated May 31, 2017. The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint. Justice Miller has been substituted for Justice Hinds–Radix (see 22 NYCRR 1250.1 [b] ).

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for breach of fiduciary duty, fraud/"fraud on the court," violation of Judiciary Law § 487, conversion, aiding and abetting conversion, aiding and abetting fraud, and prima facie tort. The causes of action were based on allegations of various intentional misconduct by the defendants in their legal representation of a certain executor and/or estate in a probate proceeding and a related guardianship proceeding to the plaintiff's detriment as a beneficiary of the subject estate. The defendants made a pre-answer motion pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated May 31, 2017, the Supreme Court granted the defendants' motion. The plaintiff appeals.

We agree with the plaintiff that he had standing to commence this action, which was not brought on behalf of the subject estate and did not seek the return of property to the estate (cf. e.g. McQuaide v. Perot, 223 N.Y. 75, 79, 119 N.E. 230 ; Inman v. Inman, 97 A.D.2d 864, 865, 469 N.Y.S.2d 259 ), and that the action was not subject to dismissal for failure to join, among others, the subject executor and estate as necessary parties (see CPLR 1001[a], [b] ). However, the complaint failed to state a cause of action (see CPLR 3211[a][7] ).

To state a cause of action to recover damages for breach of fiduciary duty, which must be pleaded with the requisite particularity under CPLR 3016(b), "a plaintiff must allege: (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduct" ( Parekh v. Cain, 96 A.D.3d 812, 816, 948 N.Y.S.2d 72 [internal quotation marks omitted] ). Here, while the defendants, as counsel for the subject executor and estate, could be liable for breach of a fiduciary duty to the plaintiff, as a beneficiary of the estate, if they placed their own self-interest above that of the beneficiaries (see Chinello v. Nixon, Hargrave, Devans & Doyle, LLP, 15 A.D.3d 894, 895–896, 788 N.Y.S.2d 750 ), there are no allegations of such self-interest in the complaint. Moreover, the plaintiff failed to allege that he was directly damaged by the defendants' alleged breach of their fiduciary duty.

To state a cause of action to recover damages for fraud, which must be pleaded with the requisite particularity under CPLR 3016(b), a plaintiff must allege "a misrepresentation or a material omission of fact which was false and known to be false by the defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury" ( Deutsche Bank Natl. Trust Co. v. Sinclair, 68 A.D.3d 914, 916, 891 N.Y.S.2d 445 ). Here, with regard to both his causes of action to recover damages for fraud/"fraud on the court" and aiding and abetting fraud, the plaintiff failed to allege that any misrepresentations or omissions were made for the purpose of inducing him to rely upon them or that he, or a court, relied on those alleged misrepresentations and omissions (see Sammy v. Haupel, 170 A.D.3d 1224, 1227, 97 N.Y.S.3d 269 ).

Pursuant to Judiciary Law § 487, "an attorney who is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party is guilty of a misdemeanor, and forfeits to the party injured treble damages, to be recovered in a civil action" ( Rozen v. Russ & Russ, P.C., 76 A.D.3d 965, 968, 908 N.Y.S.2d 217 [internal quotation marks omitted] ). A cause of action to recover damages for violation of Judiciary Law § 487 must be pleaded with specificity ( Sammy v. Haupel, 170 A.D.3d at 1225, 97 N.Y.S.3d 269 ). Here, the plaintiff alleged intent to deceive in a conclusory fashion (see Sammy v. Haupel, 170 A.D.3d at 1226, 97 N.Y.S.3d 269 ), and failed to allege that either he or a court in fact were deceived by the alleged collusion between the...