Opinion
05-03-2017
Ann BEHRLE, plaintiff, v. Keith BEHRLE and Scott Behrle, as co-executors of the estate of Fred Behrle, defendants third-party plaintiffs-respondents. James Noble, third-party defendant-appellant.
Ronald V. De Caprio, Garnerville, NY, for third-party defendant-appellant. Richard J. Feinberg, New City, NY, for defendants third-party plaintiffs-respondents.
Ronald V. De Caprio, Garnerville, NY, for third-party defendant-appellant.
Richard J. Feinberg, New City, NY, for defendants third-party plaintiffs-respondents.
MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the third-party defendant from an order of the Supreme Court, Rockland County (Gerald E. Loehr, J.), dated January 21, 2015. The order, insofar as appealed from, denied the third-party defendant's motion pursuant to CPLR 3211(a) to dismiss the third-party complaint or, in the alternative, for summary judgment dismissing the third-party complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the third-party defendant's motion which was for summary judgment dismissing the third-party complaint is granted.
The plaintiff commenced this action against her husband, Fred Behrle (hereinafter Fred), for a divorce and ancillary relief. Fred commenced a third-party action against the third-party defendant, James Noble, the plaintiff's son from a prior marriage, alleging that Noble breached a fiduciary duty to Fred by depleting the funds of a trust formed by the plaintiff and Fred. Noble moved pursuant to CPLR 3211(a) to dismiss the third-party complaint or, in the alternative, for summary judgment dismissing the third-party complaint. The Supreme Court denied the motion. Noble appeals. During the pendency of this appeal, Fred died, and Keith Behrle and Scott Behrle, as co-executors of his estate, were substituted for Fred on this appeal.
The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduct (see Stortini v. Pollis, 138 A.D.3d 977, 978–979, 31 N.Y.S.3d 90 ; Deblinger v. Sani–Pine Prods. Co., Inc., 107 A.D.3d 659, 660, 967 N.Y.S.2d 394 ). Here, Noble established his prima facie entitlement to judgment as a matter of law dismissing the third-party complaint by submitting evidence demonstrating that he did not owe a fiduciary duty to Fred, as he was merely a beneficiary under the trust. In opposition, Fred failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of Noble's motion which was for summary judgment dismissing the third-party complaint.
Noble's remaining contentions need not be reached in light of our determination.