| Behrle v Behrle |
| 2017 NY Slip Op 03470 |
| Decided on May 3, 2017 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on May 3, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JEFFREY A. COHEN
COLLEEN D. DUFFY
FRANCESCA E. CONNOLLY, JJ.
2015-08496
(Index No. 1426/14)
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.
DECISION & ORDER
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 AD3d 977, 978-979; Deblinger v Sani-Pine Prods. Co., Inc., 107 AD3d 659, 660). 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.
DILLON, J.P., COHEN, DUFFY and CONNOLLY, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court