State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 11, 2015 519975
________________________________
JESSICA M. SUTCH,
Appellant,
v
DEBERA C. SUTCH-LENZ, Also MEMORANDUM AND ORDER
Known as DEBERA C. SUTCH,
et al.,
Defendants,
and
WILLIAM J. CADE et al.,
Respondents.
________________________________
Calendar Date: April 30, 2015
Before: Lahtinen, J.P., Garry, Egan Jr. and Rose, JJ.
__________
Towne, Ryan & Partners, PC, Albany (Dana K. Scalere of
counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker, LLP (Thomas M.
Witz of counsel), for William J. Cade and another, respondents.
__________
Egan Jr., J.
Appeal from an order of the Supreme Court (Nolan Jr., J.),
entered June 24, 2014 in Saratoga County, which, among other
things, granted a motion by defendants William J. Cade and Cade &
Saunders, P.C. for summary judgment dismissing the complaint
against them.
The underlying facts are fully set forth in our prior
decision involving a virtually identical appeal brought by
-2- 519975
plaintiff's brother, Benjamin Sutch, wherein this Court affirmed
Supreme Court's order granting a motion by defendants William J.
Cade and Cade & Saunders, P.C. (hereinafter collectively referred
to as defendants) to dismiss the complaint against them (Sutch v
Sutch-Lenz, ___ AD3d ___, 2015 NY Slip Op 04692 [2015]). Upon
reviewing the record on appeal in this case, we find that
plaintiff's allegations of legal malpractice, breach of implied
contract and breach of fiduciary duty, as well as plaintiff's
request for an accounting and the disgorgement of all legal fees
received by defendants, mirror those raised by her brother on his
prior appeal1 – as does the salient evidence submitted in support
of and in opposition to defendants' motion for summary judgment
dismissing the complaint against them. Accordingly, as
plaintiff's arguments and proof with respect to the causes of
action asserted here are indistinguishable from those previously
raised by her brother, we affirm for the reasons set forth in our
prior decision (id.).
Lahtinen, J.P., Garry and Rose, JJ., concur.
ORDERED that the order is affirmed, with costs.
ENTER:
Robert D. Mayberger
Clerk of the Court
1
The only apparent distinction between the two appeals is
the procedural mechanism employed by defendants on the underlying
motions. Here, defendants answered and moved for summary
judgment dismissing plaintiff's complaint (citing CPLR 3211
grounds), whereas defendants filed a pre-answer motion to dismiss
the action brought by plaintiff's brother.