Siemsen v Mevorach

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Siemsen v Mevorach 2016 NY Slip Op 32588(U) August 29, 2016 Supreme Court, Nassau County Docket Number: 4300-2016 Judge: Arthur M. Diamond Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT - STATE OF NEW YORK Present: HON. ARTHUR M. DIAMOND Justice Supreme Court TRIAL PART: CELESTE SIEMSEN, Administratrix, C.T.A. of the Esrare of VIRGINIA LENZOVICH. Plaintiff, 7 NASSAU COUNTY -against- INDEX NO: 4300-2016 MOTION SEQ #: I LISA MEVORACH, As Guardian for Virginia LENZOVICH, and as Attorney for VIRGINIA LENZOVICH, SUBMIT DATE: 8/18/16 Defendants. The following papers having been read on this motion: Notice of Motion........................,..............,1 Opposition.,..... Rep1y.........,...... .,,........--....2 ..,..............3 Defendant moves this Court for an order dismissing pursuant to cPLRg Plaintiffs complaint in its entirety 32li(a)(l), (a)(5), and (a)(7). praintiff opposes the motion herein. Based upon the following, Defendant's motion is granted in its entirety and plaintiff s complaint is hereby dismissed. on motion to dismiss the complaint pursuant to cpLR $32i r(a)(7) for fbilure to state a cause ol'action, the court must aftbrd thc pleading a liberal construction, accept all facts as a alleged in the pleading to be true, accord thc plaintiff the benefit of every possible favorable inference, and detennine only whether the facts as alleged frt within any cognizable legal theory. d clarke v. Laidlaw Tr.. ino., 125 AD3d g2o (2 Dept. 2015). Thus, a motion to dismiss nrade pursuanr to GPLR$ 32r 1(a)(7) will fai.l taking all facts alleged as true and according them every possible inference favorable to the plaintifl the complaint states in some recognizable il lbrm any cause of action known to our law. Id. A motion to dismiss o'the ground that the action is barred by documentary evidence may be appropriately grantcd only where the documentary evidence utlerly refutes plainliffs factual allegations, conclusively establishing a defense as a matter of law. Goshen v. Mutual [* 2] Lilb Ins. co. of New York, 98 Ny2d 314, 746 Nys2d g5g (2002). In order for evidence to qualily as documentary, such as may provide bases for dismissal of complaint, it must be unambiguous, authentic, and undeniable. sunset caf6. Inc. v. Mett,s Surf & Sporls com., 103AD3d 707 , 959 NYS2d 700 (2"d Dept., 2013). If documentary proof disproves an essenrial allegation ofthe complaint, dismissal based upon documentary evidence is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of aotion. Mill Financial. LLC v. Gillett, t22 AD3d,9g, 992 NyS2d Z0 (1,r Dept., 2014). For collateral estoppel to apply, there must be an identity of issue which has necessarily prior action and is decisive ofthe present action, and there must have becn a full and fair opportunity to contest the decision now said to be controlling; the litigant seeking been dccided in thc the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily decided in the prior action against a paxty, or one in privity with a parry. Davidson v. American Bio Medica corn., 299 AD2d 390, 749 Nys2d 98 (2"d Dept., 2002). Since consequences of a determination that a party is collaterally estopped from litigating a particular issue are great, strict requirements for application of collateral estoppel doctrine must be satisfied to ensure that patly is not precluded from obtaining at least one full hearing on his or her claim. North Shore Long Island Jewish Health System. Inc. v. Aetna uS Healthoare. Inc. ,27 AD3d,439. 8l I Nys2d a 424 (2"d Dept.2006). An action lbr legal malpractice requires proof of three essential elements: l) the attorney's failure to exercise that degree of care, skill, and diligence commonly possessed by a member ofthe legal profession,2) causation, and 3) actual damage. Dombrowski v. Bulson, 19 NY3d 347, 948 NYS2d 208 (2012). Plaintiff must ordinarily establish the existence of an attomey-client relationship. Moran v. Hurst,32 AD3d 909,922 Nys2d 564 (2"d Dept., 2006). In the absence of fraud, collusion, malicious acts or other special circumstances, the malpractice Iiability of an attomey ordinarily does not extend to third persons with whom there is no privitv. See Rovello v. Klein, 304 AD2d 638,757 NyS2d 496 (2"d Dept., 2003). In the instant case, Defendant was the court-appointed guardian for Virginia Lenzovich Plaintiff has asserted two causes of action, one for breach of a fiduciary duty and another for legal malpractice. Pursuant to Mental Hygiene Law $gl.l9, an attomey can be appointed as guardian for an incapacitated person, but is not the only person that can be appointed. For [* 3] example, a family member can be appointed as guardian in the best interests of the incapacrtated person. s'ee In re Lisa D.,99 AD3d 901,9s1 Nys2d 913 (2"d Dept.,2012). Although the Plaintiff alleges that Defendant as a licensed attomey can be found liable for legal malpractice in her role as guardian for the decedent, this court does not find that such an attomey-client relationship is created by the appointment ofa guardian in an action under Mental Hygiene Law Article 81' and therefore, Plaintiffs cause of action must fail. This Court also does not tlnd that there was fraud, collusion, malicious acts, or other special circumstances that would give rise to an exception in the instant maner. Plaintiff has failed to properly cite to authority indicating that such a relationship does cxist. Accordingly, plaintiff s second cause of action for lesal malpractice is properly dismissed. Now tuming to Plaintiffs first cause of action, in order to establish a breach of a iiduciary duty, a plaintiff must prove the existence of a fiduciary relationship, misconduct by the Defendant, and damages that were directly cause by the defendant's misconduct. Deblinser v. Sani-Pine Products co.. Inc., 107 AD3d 658,967 Nys2d 394 (2"d Dept., 2013). in reviewing Plaintiffs clainis, this Court does not find that Plaintiff has sufficiently alleged misconduct on the part of Del'endant in order to sustain this cause of action. Moreover, this Courl does not find that Plaintiff may collaterally attack the ftrnds and accounts that were tumed over to her at the conclusion of the guardianship action; rather, Plaintiff s remedy was to either contest the final account submitted by Defendzurt, move the guardianship court pursuant to MHL $g1.43, or to contest the estate of the deceased in Surrogates Court. Plaintiff has failed to cite suilicient authority in the moving papers to be able to sustain this cause of action. Therefore, plaintiffs first cause ofaclion for breach of a iiduciary duty is properly dismissed. This hereby constitutes the decision and order of this Court. DATED: August 29, 2016 't ,1 :1 AU6 3{] 2Cirr 1..':-: I l(t r, i i',' ,,-: ri I i' , :i iriF (.lE

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