Opinion
2011-11-29
Laraine SALVATORE, respondent, v. BOARD OF EDUCATION OF MINEOLA UNION FREE SCHOOL DISTRICT, appellant.
Shaw, Perelson, May & Lambert, LLP, Poughkeepsie, N.Y. (Mark C. Rushfield of counsel), for appellant. Hamburger, Maxson, Yaffe, Knauer & McNally, LLP, Melville, N.Y. (Richard Hamburger and William P. Caffrey, Jr., of counsel), for respondent.
Shaw, Perelson, May & Lambert, LLP, Poughkeepsie, N.Y. (Mark C. Rushfield of counsel), for appellant. Hamburger, Maxson, Yaffe, Knauer & McNally, LLP, Melville, N.Y. (Richard Hamburger and William P. Caffrey, Jr., of counsel), for respondent.
In an action to recover damages for breach of fiduciary duty, the defendant appeals from an order of the Supreme Court, Nassau County (Woodard, J.), dated December 22, 2010, which denied its motion pursuant to CPLR 3211(a)(1), (4), (5), and (7) to dismiss the complaint based on documentary evidence, pendency of another action, collateral estoppel, res judicata, law of the case, and failure to state a cause of action
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the defendant.
The Supreme Court properly denied those branches of the defendant's motion which were pursuant to CPLR 3211(a)(1), (4), and (5) to dismiss the complaint based on documentary evidence, pendency of another action, res judicata, and collateral estoppel, since the plaintiff's current claim was not, and could not properly have been, before the court that determined the CPLR article 78 proceeding in question ( see CPLR 3211[a][1], [4], [5], [7]; 7806; Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269; People v. Evans, 94 N.Y.2d 499, 502, 706 N.Y.S.2d 678, 727 N.E.2d 1232; Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349–350, 690 N.Y.S.2d 478, 712 N.E.2d 647; People v. Manino, 306 A.D.2d 541, 542, 761 N.Y.S.2d 851). Likewise, the doctrine of law of the case was inapplicable ( see People v. Evans, 94 N.Y.2d at 502, 706 N.Y.S.2d 678, 727 N.E.2d 1232).
Nevertheless, the Supreme Court erred in denying that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. Even affording the complaint a liberal construction, accepting all facts alleged in the complaint to be true, and according the plaintiff the benefit of every possible inference, the facts alleged do not fit within any cognizable legal theory ( see EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26; Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 66 A.D.3d 122, 125, 884 N.Y.S.2d 94, affd. 16 N.Y.3d 775, 919 N.Y.S.2d 496, 944 N.E.2d 1135; Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703–704, 864 N.Y.S.2d 70; Smith v. Meridian Tech., Inc., 52 A.D.3d 685, 686, 861 N.Y.S.2d 687). We reject the plaintiff's contention that, under the circumstances alleged, the defendant had a fiduciary duty to her arising from the alleged scope of an insurance policy it obtained ( cf. EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d at 19, 799 N.Y.S.2d 170, 832 N.E.2d 26).