Opinion
2014-05-15
The ESTATE OF Benjamin FEDER, etc., Plaintiff–Appellant, v. WINNE, BANTA, HETHERINGTON, BASRALIAN & KAHN, P.C., Defendant–Respondent.
Schwartz, Levine & Kaplan, PLLC, New York (Bianca N. Nicoletti of counsel), for appellant. Hinshaw & Culbertson, LLP, New York (Joseph Silver of counsel), for respondent.
Schwartz, Levine & Kaplan, PLLC, New York (Bianca N. Nicoletti of counsel), for appellant. Hinshaw & Culbertson, LLP, New York (Joseph Silver of counsel), for respondent.
MAZZARELLI, J.P., ANDRIAS, DeGRASSE, MANZANET–DANIELS, FEINMAN, JJ.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered March 13, 2013, which granted defendant's motion to dismiss the complaint alleging legal malpractice and breach of fiduciary duty, unanimously affirmed, without costs.
The motion court properly considered the email and correspondence from defendant to plaintiff, as executor of the estate, in dismissing the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7)( David v. Hack, 97 A.D.3d 437, 438, 948 N.Y.S.2d 583 [1st Dept.2012]; see also Eighth Ave. Garage Corp. v. Kaye Scholer LLP, 93 A.D.3d 611, 612, 941 N.Y.S.2d 110 [1st Dept.2012], lv. denied19 N.Y.3d 807, 2012 WL 2401381 [2012];Robinson v. Robinson, 303 A.D.2d 234, 235–236, 757 N.Y.S.2d 13 [1st Dept.2003] ).
The motion court properly dismissed the legal malpractice claim. Plaintiff, the wife of decedent, failed to adequately allege that defendant acted negligently in advising her to pay the estate tax out of decedent's estate, rather than making a qualified terminable interest property (QTIP) election ( seeIRC § 2056[b][7] ). Such a QTIP election would have deferred payment of any estate taxes until plaintiff's death, at which time they would be paid out of her estate. Defendant explained that while a QTIP election might have resulted in an immediate tax savings during plaintiff's lifetime, it could have left significantly less to the residuary beneficiaries of decedent's estate. Defendant's legal obligation was to the estate, not to plaintiff. Thus, as the motion court concluded, defendant selected one among several reasonable courses of action ( see Rosner v. Paley, 65 N.Y.2d 736, 738, 492 N.Y.S.2d 13, 481 N.E.2d 553 [1985];Rodriguez v. Lipsig, Shapey, Manus & Moverman, P.C., 81 A.D.3d 551, 552, 917 N.Y.S.2d 563 [1st Dept.2011] ). Indeed, another firm with whom plaintiff consulted stated that defendant's analysis was correct. To the extent plaintiff argues that defendant failed to consider other alternatives, such as gifts or other trusts, those options would have contradicted the decedent's apparent testamentary intent to retain control and distribute the remainder of his assets to his children upon plaintiff's death.
The court also correctly concluded that plaintiff failed to adequately allege that defendant's conduct proximately caused any ascertainable damages. Plaintiff's damages claim was based largely on speculation that the estate tax payment could have been avoided in the future, which, as plaintiff itself acknowledged in her motion papers, depended on too many uncertainties, including future tax laws, tax rates, and the future value of the trust property ( see e.g. Brooks v. Lewin, 21 A.D.3d 731, 734–735, 800 N.Y.S.2d 695 [1st Dept.2005], lv. denied6 N.Y.3d 713, 816 N.Y.S.2d 749, 849 N.E.2d 972 [2006] ).
The court properly dismissed the breach of fiduciary duty claim, as plaintiff failed to adequately allege that defendant's conduct caused any ascertainable damages ( Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 271–272, 780 N.Y.S.2d 593 [1st Dept.2004] ).