In re the Estate of Gandolfo

Appellate Division of the Supreme Court of New York

In re the Estate of Gandolfo

237 A.D.2d 115, 655 N.Y.S.2d 341, 1997 N.Y. App. Div. LEXIS 2124

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 4, 1997

StatusPublished

Cited by2 cases

This text of 237 A.D.2d 115 (In re the Estate of Gandolfo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Gandolfo, 237 A.D.2d 115, 655 N.Y.S.2d 341, 1997 N.Y. App. Div. LEXIS 2124 (N.Y. Ct. App. 1997).

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Opinion

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered January 24, 1996, which granted defendant’s motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs.

The alleged breach of confidential or fiduciary duty occurred almost a year after the death of plaintiffs’ decedent. Accordingly, plaintiffs’ causes of action did not yet exist in decedent’s favor as of his death (cf., EPTL 11-3.2 [b]), and plaintiffs cannot press a cause of action that was not viable during decedent’s life (see, Sweets v Behrens, 88 AD2d 745, 746). We have considered plaintiffs’ remaining arguments in support of their standing to sue and find them to be without merit. Since the complaint was properly dismissed, we do not reach plaintiffs’ alternate contention. Concur—Milonas, J. P., Nardelli, Williams and Andrias, JJ.

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Order, Supreme Court, New York County (Richard Lowe, III, J.), entered January 24, 1996, which granted defendant’s motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs.

The alleged breach of confidential or fiduciary duty occurred almost a year after the death of plaintiffs’ decedent. Accordingly, plaintiffs’ causes of action did not yet exist in decedent’s favor as of his death (cf., EPTL 11-3.2 [b]), and plaintiffs cannot press a cause of action that was not viable during decedent’s life (see, Sweets v Behrens, 88 AD2d 745, 746). We have considered plaintiffs’ remaining arguments in support of their standing to sue and find them to be without merit. Since the complaint was properly dismissed, we do not reach plaintiffs’ alternate contention. Concur—Milonas, J. P., Nardelli, Williams and Andrias, JJ.

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Bluebook (online)

237 A.D.2d 115, 655 N.Y.S.2d 341, 1997 N.Y. App. Div. LEXIS 2124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-gandolfo-nyappdiv-1997.

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