In re the Estate of Gandolfo

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

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.