FKB’s Rachel Aghassi and Spencer Richards obtain Pre-Answer dismissal of a Second Amended Complaint alleging negligence, fraud, bailment, and conversion filed in the Supreme Court, Nassau County against FKB’s client arising out of FKB’s client’s representation of the nominated executor in a related Surrogate’s Matter.

In the Surrogate’s Matter, the plaintiff claimed that certain property in the decedent’s home belonged to the plaintiff and that the property had been stolen. However, the Surrogate’s Court did not rule that any of the property belonged to the plaintiff. The plaintiff thereafter commenced an action in New York, Supreme Court, Nassau County, against FKB’s client seeking the value of the stolen property.

In its CPLR 3211(a)(1) and (a)(7) motion to dismiss the Second Amended Complaint, FKB successfully argued that the plaintiff’s allegations of missing property fail to state a claim against FKB’s client because the Surrogate’s Court did not rule that any of the property in the decedent’s apartment belonged to the plaintiff. First, in dismissing the Second Amended Complaint, the Court (Justice David P. Sullivan) agreed with FKB’s argument that the bailment cause of action fails to state a claim against FKB’s client because the plaintiff did not deliver any property to FKB’s client. Second, the Court agreed with FKB’s argument that the Second Amended Complaint fails to state a claim for conversion because the plaintiff failed to allege that the plaintiff had an immediate right to possession of property in the decedent’s home. Third, the Court agreed with FKB’s argument that the fraud cause of action fails to state a claim against FKB’s client and held that the plaintiff failed to satisfy the “specificity necessary to satisfy CPLR §3016 for her fraud claim.” Finally, the Court agreed with FKB’s argument that because FKB’s client represents the nominated executor, the allegations in the Second Amended Complaint “are insufficient to establish any duty owed” by FKB’s client to the plaintiff establish a claim a negligence.  

If you have any questions about this decision, or the defense of attorneys in general, please contact Rachel Aghassi or Spencer Richards.