The following papers were read on Defendants’ motion for summary judgment: NOTICE OF MOTION AFFIRMATION IN SUPPORT EXHIBITS A — F AFFIDAVIT IN SUPPORT EXHIBITS A — J MEMORANDUM OF LAW IN SUPPORT AFFIRMATION IN OPPOSITION EXHIBITS A — J AFFIDAVIT IN OPPOSITION MEMORANDUM OF LAW IN OPPOSITION REPLY AFFIRMATION REPLY MEMORANDUM OF LAW DECISION AND ORDER Defendants move for summary judgment in this action asserting claims of legal malpractice and breach of fiduciary duty. The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986). If a movant has met this threshold burden, to defeat the motion the opposing party must present the existence of triable issues of fact. See Zuckerman v. New York, 49 NY2d 557, 562 (1980). In deciding a motion for summary judgment, the court is required to view the evidence presented “in the light most favorable to the party opposing the motion and to draw every reasonable inference from the pleadings and the proof submitted by the parties in favor of the opponent to the motion.” Yelder v. Walters, 64 AD3d 762, 767 (2nd Dept 2009). In support of their motion, Defendants have submitted copies of the pleadings, trust agreements, Power of Attorney forms and correspondence between decedent Vernetta Stephens (“Stephens”) and the defendants. The action arises from a legal relationship between Defendants and Stephens that began in 1998. At that time Defendant Levine (“Defendant”) prepared legal documents necessary to transfer ownership of Stephens’ house to her niece, Susan Phillips aka Susan Penney (“Penney”), establishing the Verenetta R. Stephens Trust naming Ms. Stephens and Ms. Penney as the co-trustees and Ms. Penney as the majority beneficiary upon Ms. Stephens’ death and a Power of Attorney appointing Ms. Penney as Ms. Stephens’ attorney-in-fact. Defendant asserts in his affidavit that it was his understanding at the time that Penney lived with Stephens and was helping to care for her. In 2006 Defendant revised the 1998 trust at the request of Stephens and Penney. The First Amendment and Restatement of Trust Agreement of Verenetta R. Stephens was executed on May 17, 2006. On that same date, Ms. Stephens executed a new Power of Attorney again appointing Ms. Penney as her attorney-in-fact. The Power of Attorney authorized Ms. Penney to create any revocable or irrevocable trust for Ms. Stephens’ benefit. In 2010 Ms. Stephens executed a Second Amendment to Trust Agreement of Verenetta R. Stephens. Defendant asserts that in 2014 Ms. Penney contacted him to advise that Ms. Stephens’ health was failing. Defendant suggested the preparation of a new Power of Attorney using a form that had been adopted in 2010. He prepared the form, forwarded it to Ms. Penney and she returned a fully executed Power of Attorney dated September 9, 2014. The 2014 Power of Attorney did not make any substantive change to the powers Stephens granted to Penney in the 2006 Power of Attorney. Defendant claims that in 2015 Ms. Penney contacted him again, advising that Ms. Stephens’ was in poor health and stating that she wanted to preserve assets for Medicaid planning purposes. Defendant asserts that based on this request he prepared an irrevocable trust agreement naming Ms. Penney as the sole trustee and sole beneficiary of the trust. Penney executed the irrevocable trust agreement in her capacity as Ms. Stephens’ agent pursuant to the authority given to her in the 2006 and 2014 Powers of Attorney. To establish a legal malpractice claim a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused actual and ascertainable damages. Rudolph v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 (2007). To prevail at trial, Plaintiff will be required to establish by expert testimony that the defendants failed to perform in a professionally competent manner. Thus, to meet their burden of establishing an entitlement to summary judgment, the defendants must establish through expert opinion that they did not perform below the ordinary reasonable skill and care possessed by the average member of the legal community. See Suppiah v. Kalish, 76 AD3d 829 (1st Dept 2010); Aur v. Manhattan Greenpoint, Ltd., 132 AD3d 595 (1st Dept 2015). Neither the affidavit of Gary Levine nor the contentions of counsel are sufficient to make this showing. Defendants’ exclusive reliance on the Power of Attorney Stephens gave Penney that authorized her to create an irrevocable trust for Stephens’ benefit is misplaced. Defendant states in his affidavit that he never represented Ms. Penney and that his services were rendered exclusively on behalf of decedent Stephens. However, in 2015 he drafted at Penney’s request an irrevocable trust agreement naming Penney as both the sole trustee and sole beneficiary. Plaintiff’s complaint asserts that as of that date Ms. Stephens was 100 years old, had ample resources and thus the preparation of the irrevocable trust conferred no benefit whatsoever to Stephens. The only explanation for the preparation of the 2015 irrevocable trust agreement Defendant offers is to allege that Penney called him, told him her aunt was “not doing well” and that she wanted to preserve assets for Medicaid planning purposes. Any comments attributed to Ms. Penney are hearsay and thus are not competent evidence that the court may consider in determining whether Defendants have established a prima facie entitlement to summary judgment. See Zuckerman v. City of New York, 49 NY2d 557, 562 (1980) Notably, Defendant offers no other explanation for drafting an irrevocable trust agreement at the sole request of Penney that named her as both sole trustee and sole beneficiary. He asserts that Stephens was his client and he was representing her interests in connection with the matter, but does not address how the creation of an irrevocable trust would benefit Stephens. As Stephens was his client, his obligation was to act on her behalf. To the extent that Penney was acting on Stephens’ behalf as authorized in the Power of Attorney, her authority in that capacity was as a fiduciary to Stephens and was also limited to taking actions that benefitted Stephens. Under such circumstances, an issue of fact exists as to whether Defendants facilitating Penney’s execution of an irrevocable trust agreement in November 2015 was adverse to Stephens’ interest and did not comport with the ordinary reasonable skill and care possessed by an average member of the legal community. The mere fact that the Power of Attorney authorized Penney to create an irrevocable trust is not dispositive. As Defendants have failed to establish a prima facie entitlement to summary judgment on Plaintiff’s legal malpractice claim, the burden does not shift to the plaintiff. Id. at 832. Wherefore, it is ORDERED that Defendants’ motion for summary judgment to dismiss Plaintiff’s legal malpractice claim is denied. It is further ORDERED that Defendants’ motion to dismiss Plaintiff’s breach of fiduciary duty claim as duplicative of the legal malpractice claim is granted. It is well established where a breach of fiduciary duty cause of action arises from the same facts as a legal malpractice claim and alleges similar damages, the court should dismiss the breach of fiduciary claim. See Alphas v. Smith, 147 AD3d 557 (1st Dept 2017). Plaintiff’s breach of fiduciary claim is premised on an allegation that Defendants’ execution of the 2015 irrevocable trust agreement was adverse to Stephens’ interests. In seeking dismissal of this claim Defendants rely on attorney Levine’s affidavit stating that he never represented Penney and that all times relevant to this action his only client was Stephens. This evidence is sufficient to establish prima facie that Plaintiff’s claim relating to the preparation of the 2015 irrevocable trust agreement is entirely duplicative of the legal malpractice claim. In opposition, Plaintiff fails to raise an issue of fact. His claims that Defendants breached their fiduciary obligation to Ms. Stephens as a long-term client and acted contrary to her interests are the same assertions underlying his legal malpractice claim. Nor has Plaintiff produced any evidence that Defendants were representing Ms. Penney as an independent client in connection with the preparation and execution of the 2015 irrevocable trust agreement. Thus, the breach of fiduciary duty claim is duplicative of legal malpractice claim. The foregoing constitutes the decision and order of the Court. The matter is scheduled for a pre-trial conference on July 8, 2020 at 10:00 a.m. by Skype for Business. Scanned to the E-File System only Pursuant to CPLR §5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof. Dated: June 24, 2020
