Patricia C. Dineen, individually and as a shareholder in the right of Appleseed Ventures, Inc., appellant,
Barbara J. Wilkens, et al., respondents. Index No. 62130/16
- September 11, 2017
Richard A. Danzig, White Plains, NY (David Barrack and Donald
S. Campbell of counsel), for appellant.
Shapiro Gettinger Waldinger & Monteleone, LLP, Mount
Kisco, NY (Mona D. Shapiro of counsel), for respondents.
C. DILLON, J.P. BETSY BARROS FRANCESCA E. CONNOLLY ANGELA G.
DECISION & ORDER
action, inter alia, to recover damages for breach of
fiduciary duty, the plaintiff appeals, as limited by her
brief, from so much of an order of the Supreme Court,
Westchester County (Jamieson, J.), dated December 21, 2016,
as (1) granted those branches of the defendants' motion
which were pursuant to CPLR 3211(a)(1), (5), and (7) to
dismiss the first, third, fourth, fifth, and sixth causes of
action insofar as asserted against the defendants P. Daniel
Hollis III and Shamberg Marwell Hollis Andreycak &
Laidlaw, P.C., and (2) denied her cross motion pursuant to
CPLR 602 to consolidate this action with a consolidated
action and proceedings entitled Dineen v Pratt,
pending in the Supreme Court, Westchester County, under Index
No. 62053/15, and, upon consolidation, to disqualify the
defendants P. Daniel Hollis III and Shamberg Marwell Hollis
Andreycak & Laidlaw, P.C., from representing the
defendants in the consolidated actions and proceedings.
that the order is affirmed insofar as appealed from, with
litigation arises out of a dispute among family members
regarding ownership and control of Wilkens Farm (hereinafter
the farm), a large family-owned farm located in Yorktown
Heights, New York. The farm contains two parcels of land, one
consisting of approximately 105 acres and the other
consisting of approximately 76 acres. In 1988, the owner,
John F. Wilkens (hereinafter John Wilkens), transferred the
larger parcel to the Wilkens Family Farm, Inc., a corporation
in which his children and some of their spouses were
shareholders. In 1995, John Wilkens's two daughters,
Patricia C. Dineen and Barbara Pratt, formed Appleseed
Ventures, Inc. (hereinafter Appleseed), for the purposes of
operating and managing the farm. Dineen and Pratt each owned
a 50% share of Appleseed. John Wilkens leased the 76-acre
parcel to Dineen and Pratt, who then assigned the lease to
Appleseed. Sometime thereafter, the lease to the 105-acre
parcel was also assigned to Appleseed.
testamentary trust (hereinafter the trust) created under John
Wilkens's will governed the distribution of the farm
after his death. The 76-acre parcel was placed in the trust,
and John Wilkens's wife, Barbara J. Wilkens (hereinafter
Barbara Wilkens), was named as a life estate beneficiary.
Pratt was named the sole trustee of the trust, with the
discretion to terminate the trust and to distribute it to her
mother, Barbara Wilkens, the sole income beneficiary.
Furthermore, John Wilkens's will provided that Barbara
Wilkens could exercise a power of appointment under her own
will and bequeath the 76-acre parcel to one or more of her
Wilkens passed away in 1997. In May 2011, Pratt and her
husband, an attorney, formed White Hill Orchards, Inc.
(hereinafter White Hill), after which the trust leased the
76-acre parcel to White Hill for the purpose of operating the
farm. In 2011, Barbara Wilkens exercised the power of
appointment under her will and bequeathed the 76-acre parcel
to Pratt. Shortly thereafter, Dineen commenced a
shareholder's derivative action in the Supreme Court,
Westchester County, against Pratt, Pratt's husband, and
White Hill, which was later discontinued. In 2014, Dineen
commenced two proceedings in the Surrogate's Court,
Westchester County, seeking a compulsory accounting of the
trust and to remove Pratt as trustee of the trust. In 2015,
Pratt terminated the trust and distributed its assets,
including the 76-acre parcel, to Barbara Wilkens, who
subsequently waived a formal accounting of the trust. In
August 2016, Dineen commenced this action against Barbara
Wilkens and Pratt's attorneys, Daniel Hollis III and
Shamberg Marwell Hollis Andreycak & Laidlaw, P.C.
(hereinafter together the Shamberg attorneys). As is relevant
to this appeal, the Supreme Court granted those branches of
the defendants' motion which were to dismiss, pursuant to
CPLR 3211(a)(7), all the causes of action insofar as asserted
against the Shamberg attorneys. Dineen appeals.
Supreme Court properly granted those branches of the
defendants' motion which were to dismiss the first cause
of action, alleging fraudulent conveyances, and the fifth
cause of action, alleging aiding and abetting fraudulent
conveyances, insofar as asserted against the Shamberg
attorneys. The complaint failed to plead with particularity
that the Shamberg attorneys engaged in any fraudulent
conveyance (see CPLR 3016[b]; Swartz v
Swartz, 145 A.D.3d 818, 827). Further, with regard to
the allegation that they aided and abetted a fraudulent
conveyance, there is no such cause of action against one who
is alleged merely to have assisted in effecting a transfer in
a professional capacity (see BBCNBank v 12th Ave. Rest.
Group Inc., 150 A.D.3d 623).
Supreme Court properly granted that branch of the
defendants' motion which was to dismiss the fourth cause
of action to recover damages for breach of a fiduciary duty
insofar as asserted against the Shamberg attorneys. A cause
of action to recover damages for breach of fiduciary duty
must be pleaded with particularity (see CPLR
3016[b]). The elements of that cause of action are (1) the
existence of a fiduciary duty, (2) misconduct by the
defendant, and (3) damages directly caused by the
defendant's misconduct (see Saul v Cahan, 153
A.D.3d 947). Dineen alleges only that Pratt-who is not a
defendant in this action-not the Shamberg attorneys, breached
fiduciary duties owed to Appleseed. Similarly, the court
properly directed dismissal of the sixth cause of action,
which alleges the aiding and abetting of a breach of
fiduciary duty, for failure to state a cause of action.
"'A claim for aiding and abetting a breach of
fiduciary duty requires: (1) a breach by a fiduciary of
obligations to another, (2) that the defendant knowingly
induced or participated in the breach, and (3) that [the]
plaintiff suffered damages as a result of the breach"
(Tri-Star Light. Corp. v Goldstein, 151 A.D.3d 1102,
1107, quoting Kaufman v Cohen, 307 A.D.2d 113, 125).
Here, the allegations that the Shamberg attorneys aided and
abetted Pratt in breaching certain fiduciary duties are
conclusory and fail to allege facts from which it could be
inferred that the Shamberg attorneys participated in any such
the Supreme Court properly directed dismissal of the third
cause of action sounding in legal malpractice, as it failed
to allege any acts or omissions by the Shamberg attorneys
that would ...