Loevner v. Loevner
| Decision Date | 15 February 2011 |
| Parties | Suzanne LOEVNER, respondent, v. Richard LOEVNER, appellant. |
| Court | New York Supreme Court — Appellate Division |
81 A.D.3d 791
Suzanne LOEVNER, respondent,
v.
Richard LOEVNER, appellant.
Supreme Court, Appellate Division, Second Department, New York.
Feb. 15, 2011.
Costantino Fragale, Eastchester, N.Y., for appellant.
Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Robert N. Zausmer of counsel), for respondent.
In an action to recover damages for fraud and breach of fiduciary duty, the defendant appeals from an order of the Supreme Court, Suffolk County (Rebolini, J.), dated June 16, 2010, which denied his motion pursuant to CPLR 3211(a)(1) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
On this motion pursuant to CPLR 3211(a)(1) to dismiss the complaint based on a defense founded upon documentary evidence, the defendant failed to sustain his burden of coming forward with documentary evidence which "utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Galvan v. 9519 Third Ave. Rest. Corp., 74 A.D.3d 743, 901 N.Y.S.2d 529; Farber v. Breslin, 47 A.D.3d 873, 876, 850 N.Y.S.2d 604). Given the discrepancies in some of the documents submitted by the parties, and considering the plaintiff's allegations regarding the trust she reposed in the defendant, the representations he made to her, and the circumstances under which she executed the papers that the defendant presented to her, the defendant failed to resolve all issues as a matter of law and conclusively dispose of the plaintiff's claims ( see Galvan v. 9519 Third Ave. Rest. Corp., 74 A.D.3d at 743, 901 N.Y.S.2d 529; Suchmacher v. Manana Grocery, 73 A.D.3d 1017, 900 N.Y.S.2d 686; Farber v. Breslin, 47 A.D.3d at 876-877, 850 N.Y.S.2d 604; Kalmon Dolgin Affiliates of Long Is. v. Robert Plan Corp., 248 A.D.2d 594, 669 N.Y.S.2d 920).
The defendant's additional contention that the plaintiff's cause of action to recover damages for breach of fiduciary duty should have been dismissed is likewise without merit, as the plaintiff alleged facts establishing the existence of a confidential or fiduciary relationship between the parties based on the defendant's status both as her brother ( see Braddock v. Braddock, 60 A.D.3d 84, 88-89, 871 N.Y.S.2d 68; Squiciarino v. Squiciarino, 35 A.D.3d 844, 845, 830 N.Y.S.2d 163; McNeil v. Mohammed, ...
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